          United States Court of Appeals
                     For the First Circuit


No. 18-1420

                     LYNN R. RÍOS-CAMPBELL,

                      Plaintiff, Appellant,

                               v.

               U.S. DEPARTMENT OF COMMERCE et al.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]


                             Before

                  Torruella, Selya, and Lynch,
                         Circuit Judges.


     Israel Roldán-González on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Antonio L. Perez-Alonso, Assistant United
States Attorney, on brief for appellees.


                          June 13, 2019
           SELYA, Circuit Judge.            It is written that "[t]o every

thing   there     is   a   season,    and     a   time    to   every   purpose."

Ecclesiastes 3:1.      This proverb may ring as true in federal civil

procedure as in nature: because the court below, acting on a fully

developed motion for summary judgment, employed a legal standard

meant for use at an earlier stage of the case, its judgment must

be vacated.     The tale follows.

           We briefly rehearse the relevant facts and procedural

history.   On March 5, 2015, plaintiff-appellant Lynn R. Ríos-

Campbell commenced a civil action in the United States District

Court for the District of Puerto Rico.                   In his complaint, the

plaintiff — a native of Puerto Rico — alleged that his employer,

the United States Department of Commerce, along with several

federal functionaries, had discriminated against him on the basis

of his national origin and, in the bargain, had subjected him to

retaliation when he raised the issue.                The plaintiff filed an

amended complaint, not relevant here, and then filed a second

amended complaint on December 23, 2015. After the defendants filed

an answer and the district court entered a scheduling order, the

parties engaged in pretrial discovery. The discovery period closed

on March 31, 2016.

           Soon    thereafter,       the    defendants     moved   for   summary

judgment. See Fed. R. Civ. P. 56(a). Their motion papers included




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over 1,200 pages of exhibits.     The plaintiff opposed the motion,

and the defendants replied to his opposition.

            The matter lay relatively fallow for over a year.    On

March 29, 2018, the district court entered an order stating in

pertinent part:      "[h]aving considered the Motion for Summary

Judgment filed by defendants . . . as a motion to dismiss for

failure to state a plausible claim, said Motion for Summary

judgment is GRANTED."     The court advised that a "[s]tatement of

reasons" would follow.

            On May 2, the court amended its March 29 order nunc pro

tunc.    The amended order confirmed that the court, sua sponte, had

treated the defendants' motion for summary judgment as a motion to

dismiss "pursuant to Fed. R. Civ. P. 12(b)(6)" and had granted the

motion on that understanding.       Its accompanying statement of

reasons memorialized the court's view that the plaintiff's second

amended complaint failed to state a plausible claim upon which

relief could be granted.1    This timely appeal followed.

            Despite the fact that the parties do not quarrel with

the district court's treatment of the defendants' motion for




     1 The court's decision to invoke the plausibility standard
was reached on its own initiative.     None of the parties had
suggested the use of this standard in their summary judgment
papers, and the district court gave no prior notice of its
intention to treat the summary judgment motion in that manner.
Nor did the court invite any briefing from the parties as to its
intended course of action.


                                - 3 -
summary judgment as a motion to dismiss, that issue casts a large

shadow over any attempt to review the ruling below.           In our view,

the    orderly   administration   of   justice     counsels   in   favor   of

addressing the issue here and now. Our consideration of the appeal

begins — and ends — there.

            We review the district court's decision to treat the

defendants' motion for summary judgment as a motion to dismiss for

abuse of discretion.     See Vélez v. Awning Windows, Inc., 375 F.3d

35, 41 (1st Cir. 2004) (holding that "[a]ppellate review of a

district court's case-management decisions is solely for abuse of

discretion"); cf. Rubert-Torres v. Hosp. San Pablo, Inc., 205 F.3d

472, 475 (1st Cir. 2000) (explaining that review of district

court's conversion of "Rule 12 motion into motion for summary

judgment [is] for abuse of discretion").         The dispositive question

is whether, in the absence of special circumstances or persuasive

reasons,    the    district   court       abused    its    discretion      in

transmogrifying a fully developed motion for summary judgment,

replete with exhibits gleaned partially through discovery, into a

motion to dismiss for failure to state a claim.           We think that it

did.

            The Federal Rules of Civil Procedure offer litigants a

number of avenues through which they may attempt to terminate civil

actions short of trial.    The earliest available option is a motion

to dismiss under Rule 12(b), which "must be made before pleading


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if a responsive pleading is allowed."         Fed. R. Civ. P. 12(b).      The

rule itself lists several grounds upon which such a motion may

rest, including (as relevant here) "failure to state a claim upon

which relief can be granted."            Fed. R. Civ. P. 12(b)(6).         To

withstand    a    Rule   12(b)(6)   motion,   a   complaint   must   "contain

sufficient factual matter . . . to 'state a claim to relief that

is plausible on its face.'"         Haley v. City of Boston, 657 F.3d 39,

46 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)).

             By its very nature, the plausibility standard is time-

sensitive.       Refined to bare essence, it "is a screening mechanism

designed to weed out cases that do not warrant either discovery or

trial."    Atieh v. Riordan, 727 F.3d 73, 76 (1st Cir. 2013).           This

screening comprises a "threshold inquiry."           Grajales v. P.R. Ports

Auth., 682 F.3d 40, 46 (1st Cir. 2012).           It is meant to take place

early in the litigation, prior to discovery.           See id.

             Once an answer to the complaint is filed, the legal

landscape shifts.        In such circumstances, a party's next option is

to move for judgment on the pleadings under Rule 12(c).              See Fed.

R. Civ. P. 12(c) (providing that "[a]fter the pleadings are closed

— but early enough not to delay trial — a party may move for

judgment on the pleadings").          If "a motion for judgment on the

pleadings . . . is employed as a vehicle to test the plausibility




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of a complaint," the Rule 12(b)(6) plausibility standard may again

come front and center.   Grajales, 682 F.3d at 44.

          When the window for filing either a motion to dismiss

for failure to state a claim or a motion for judgment on the

pleadings has shut and substantial discovery has taken place, the

plausibility standard normally becomes a relic of a bygone time.

From that point forward, a party seeking to end a civil action

short of trial ordinarily must meet a different standard:      the

standard applicable to a motion for summary judgment under Rule

56.   A district court will grant summary judgment only "if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).   In the usual case, such a motion — unlike

a motion to dismiss for failure to state a claim2 — will be based,

at least in part, on materials outside the pleadings.


      2To be sure, there is a narrow swath of materials outside
the complaint itself that may be considered on a motion to dismiss
for failure to state a claim.      See, e.g., Freeman v. Town of
Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (explaining that "some
extrinsic documents may be considered without converting a motion
to dismiss into a motion for summary judgment"); Banco Santander
de P.R. v. López-Stubbe (In re Colonial Mortg. Bankers Corp.), 324
F.3d 12, 20 (1st Cir. 2003) (explaining that district court
adjudicating   motion   to   dismiss   may   consider   "documents
incorporated by reference in [the complaint], matters of public
record, and other matters susceptible to judicial notice");
Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir.
1998) (explaining that when "complaint's factual allegations are
expressly linked to — and admittedly dependent upon — a document
(the authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can


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            Seen in this light, it is luminously clear that the root

purpose of the plausibility standard differs materially from the

root purpose of the summary judgment standard.                 The former is

intended to screen out claims in which the factual allegations of

the complaint are too scanty or too vague to render the claims

plausible, see Atieh, 727 F.3d at 76, whereas the latter is

intended to "pierce the boilerplate of the pleadings and assay the

parties' proof in order to determine whether trial is actually

required," Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st

Cir. 2014) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d

791, 794 (1st Cir. 1992)).       It follows that while a complaint may

be tested for plausibility at the inception of a suit, a district

court "should refrain from entertaining summary judgment motions

until after the parties have had a sufficient opportunity to

conduct necessary discovery."          Vélez, 375 F.3d at 39.

            Viewed    against   this    backdrop,    the    district    court's

attempt,    without   notice,   to     transform    the    defendants'   fully

developed   motion    for   summary    judgment,    replete    with    exhibits

gleaned partially through discovery, into a motion to dismiss for

failure to state a claim strikes a dissonant chord. The defendants

chose not to file a motion to dismiss but instead to move for




review it in deciding a motion to dismiss under Rule 12(b)(6)").
In the case at hand, the attachments to the defendants' motion for
summary judgment go far beyond this narrow swath.


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summary judgment, and that choice should be given some weight —

especially since the Federal Rules of Civil Procedure offer no

support for a conversion such as was undertaken by the district

court.

          Although a motion to dismiss for failure to state a claim

sometimes may be converted into a motion for summary judgment,3 we

know of no authority that allows for the reverse conversion of a

summary judgment motion into a motion to dismiss for failure to

state a claim.   Just because a cucumber can be turned into a pickle

does not mean that a pickle can be turned into a cucumber, and

principles of sound case management strongly suggest that allowing

such a reverse conversion here would be inappropriate.   After all,

the parties briefed and argued summary judgment, and judicial

efficiency would have been best served by dealing directly with

those arguments rather than avoiding them.    This course of action

would seem particularly appropriate since, had the defendants

elected to file a motion to dismiss under Rule 12(b)(6) after the

close of discovery, their motion would have been deemed untimely.

See Fed. R. Civ. P. 12(b) (requiring that motion to dismiss be

filed before movant has answered complaint); see also Patrick v.


     3See Fed. R. Civ. P. 12(d) (providing that if "matters outside
the pleadings are presented to and not excluded by the court" on
a Rule 12(b)(6) motion, the motion "must be treated as one for
summary judgment under Rule 56"); see also Beddall v. State St.
Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998) (discussing
conversion of Rule 12(b)(6) motion into Rule 56 motion).


                                - 8 -
Rivera-Lopez, 708 F.3d 15, 18 (1st Cir. 2013) (finding Rule

12(b)(6) motion, filed "long after the deadline for responsive

pleadings," untimely).

          We add, moreover, that on the facts of this case, the

district court's approach stands logic on its ear.         "[O]ne of the

main goals of the plausibility standard is the avoidance of

unnecessary discovery."         Grajales, 682 F.3d at 46 (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 556-58 (2007)).            To allow

invocation of the plausibility standard after the completion of

discovery would defeat this goal. And in all events, going through

a lengthy period of discovery only to ignore the fruits of the

discovery process by focusing single-mindedly on the adequacy of

the allegations of the complaint would make little sense in the

mine-run of cases.      See id. ("Applying the plausibility standard

to a complaint after discovery is nearly complete would defeat

[the standard's] core purpose.").       Absent special circumstances or

persuasive reasons (not present here), we see no justification for

allowing a district court to travel back in time and train the

lens of its inquiry on the bare allegations of the complaint while

disregarding the compiled factual record upon which a summary

judgment movant has elected to rely.          Cf. id. (cautioning that

"once   the   parties    have     invested   substantial   resources   in

discovery, a district court should hesitate to entertain a Rule




                                   - 9 -
12(c) motion that asserts a complaint's failure to satisfy the

plausibility requirement").

            We need go no further. For the reasons elucidated above,

we hold that the district court applied the wrong legal standard

in adjudicating the defendants' summary judgment motion.           Where,

as here, an answer has been filed and no special circumstances or

persuasive reasons justifying contrary action exist, a district

court should not treat a fully developed motion for summary

judgment as a motion to dismiss for failure to state a claim upon

which relief may be granted.        Accordingly, we vacate the judgment

of   the   district   court   and   remand   for   consideration   of   the

defendants' motion under the summary judgment standard.



Vacated and remanded.     No costs.




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