Whether a complaint that states a claim may be dismissed on the grounds that a plaintiff waived an argument against dismissal by failing to make the argument in opposition to a motion to dismiss

QUESTION PRESENTED This case presents an acknowledged and intractable conflict regarding an important question under the Federal Rules of Civil Procedure. Eight courts of appeals agree that a complaint may be dismissed only if it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P 12(b)(6). The First Circuit is the only circuit that departs from this settled principle. In the First Circuit a complaint may be dismissed if the plaintiff “waives” an argument against dismissal by failing to raise it in opposition to a motion to dismiss even if the complaint plainly states a claim. To add insult to injury, plaintiffs cannot even appeal such dismissals because the First Circuit holds that the failure to make the argument in the opposition to the motion to dismiss also waives it on appeal. The question presented arises repeatedly in disputes in the First Circuit, the First Circuit refuses to reconsider it, and it continues to generate problems and confusion for countless litigants and courts. The underlying cases are significant—often involving vulnerable, under-resourced litigants, those least able to procure expensive counsel who can research and draft filings that methodically refute every argument in a motion to dismiss no matter how flawed. Because this case presents an excellent vehicle for resolving this important question of federal law, and bringing the First Circuit’s law into alignment with that of every other, the petition should be granted. The question presented is: Whether a complaint that states a claim may be dismissed on the grounds that a plaintiff waived an argument against dismissal by failing to make the argument in opposition to a motion to dismiss. (i)