Brannen Marcure v. Tyler Lynn

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                      ____________________
No. 19-2978
BRANNEN MARCURE,
                                                  Plaintiff-Appellant,
                                 v.

TYLER LYNN, et al.,
                                               Defendants-Appellees.
                      ____________________

         Appeal from the United States District Court for the
                     Central District of Illinois
          No. 3:18-CV-03137 — Sue E. Myerscough, Judge.
                      ____________________

   ARGUED JANUARY 21, 2021 — DECIDED MARCH 25, 2021
               ____________________

   Before SYKES, Chief Judge, and MANION and ST. EVE, Circuit
Judges.
   ST. EVE, Circuit Judge. This appeal asks us to address the
scope of two Federal Rules of Civil Procedure: Rule 11(a) and
Rule 12(b)(6). Under Rule 11(a), courts must strike unsigned
documents unless the filing party promptly corrects them.
Rule 12(b)(6) provides a mechanism for dismissing a claim if
the movant shows that the claimant insufficiently pleaded it.
While these rules may appear unrelated, they intersect in this
2                                                   No. 19-2978

case because the district court’s application of Rule 11(a) indi-
rectly led to its Rule 12(b)(6) dismissal of Brannen Marcure’s
claims.
    Marcure, a pro se litigant, alleged § 1983 claims against
several police officers, who filed a Rule 12(b)(6) motion to dis-
miss those claims. Marcure’s response to their motion lacked
a signature in violation of Rule 11(a). Although the district
court gave Marcure six days to remedy this deficiency, he
never did. The court then struck his response and granted the
officers’ motion on the sole basis that it was unopposed.
     This appeal followed. Marcure, assisted by appointed
counsel, challenges the district court’s decision on two fronts.
As a threshold matter, he argues that the district court struck
his response under the incorrect presumption that Rule 11(a)
is mandatory. He also attacks the dismissal itself as impermis-
sibly relieving the officers of their burden under Rule 12(b)(6).
Because the rule places the burden on the movant to show en-
titlement to dismissal, he argues, courts must address the
merits of Rule 12(b)(6) motions even when they are unop-
posed. Although we decline to adopt Marcure’s interpretation
of Rule 11(a), we agree that courts may not dismiss Rule
12(b)(6) motions solely because they are unopposed. We thus
reverse and remand to the district court.
                               I.
   This lawsuit began when Marcure filed a § 1983 action
against several defendants, including police officers,
No. 19-2978                                                                3

prosecutors, defense attorneys, and relatives. 1 Between the in-
itiation of his suit and the officers’ filing of their motion to dis-
miss in September 2018, Marcure filed notice of an address
change from Arizona to Illinois. The district court mailed no-
tices, including a notice of the motion to dismiss, to the Illinois
address that Marcure listed; these notices were returned as
undeliverable. Based on the returned court documents, in Oc-
tober 2018 the court entered a docket text order for Marcure
to show cause why his case should not be dismissed due to
his failure to keep the court apprised of his current address.
Marcure provided notice of a post-office box seven days later.
    On October 22, 2018, Marcure filed a response to the offic-
ers’ motion to dismiss. The response was nearly a month late
and lacked a signature. The court entered another docket text
order on October 26, 2018, excusing the late filing due to Mar-
cure’s recent address change but warning that the court
would strike the response pursuant to Federal Rule of Civil
Procedure 11(a) if Marcure did not correct the signature defi-
ciency within six days.
    Around the same time, the defense attorneys and prosecu-
tors filed motions to dismiss (on October 29th and November
7th) to which Marcure filed timely, signed responses. He did
not, however, correct his unsigned response to the officers’
motion or file a new response. Curiously, his amended



1 We have appellate jurisdiction because the district court entered judg-
ment pursuant to Federal Rule of Civil Procedure 58. The judgment dis-
missed the claims against all the defendants, doing so with prejudice as to
the defendants that Marcure served, and indicated that the district court
was finished with the case. See Kowalski v. Boliker, 

 (7th
Cir. 2018); see also Ordower v. Feldman, 

 (7th Cir. 1987).
4                                                   No. 19-2978

response to the defense attorneys’ motion contained a hand-
written note following the signature that stated: “Plaintiff
signed and numbered pages thank you.”
    On November 8, 2018, one week after the deadline to cor-
rect the response to the officers’ motion, the court struck Mar-
cure’s response. The court then dismissed the claims against
the officers with prejudice solely because their motion was
unopposed. For authority, the court relied on Central District
of Illinois Local Rule 7.1(B)(2), which permits the court to con-
sider a motion unopposed and rule on it without further no-
tice to the parties if a response was not filed within 14 days.
    On appeal, Marcure contends that the court committed
two reversible errors. First, he argues that the court incor-
rectly interpreted Rule 11(a) as mandatory. Second, Marcure
maintains that Rule 12(b)(6) requires courts to address the
merits of motions to dismiss and that any local rule to the con-
trary is invalid under Rule 83(a)(1). The second issue is the
subject of a circuit split, and Marcure urges us to adopt the
majority approach. While we reject Marcure’s interpretation
of Rule 11(a), we agree with his reading of Rule 12(b)(6) and
reverse and remand on that basis.
                               II.
    We review legal determinations de novo and applications
of Rule 11(a) for abuse of discretion. Common Cause Ind. v.
Lawson, 

, 949 (7th Cir. 2020); see Divane v. Krull
Elec. Co., Inc., 

 (7th Cir. 1999). Rule 11(a)
provides that courts “must strike an unsigned paper unless the
omission is promptly corrected after being called to the attor-
ney’s or party’s attention.” Fed. R. Civ. P. 11(a) (emphasis
added). By its plain terms, Rule 11(a) is mandatory when
No. 19-2978                                                               5

triggered—“must” does not mean “may.” The text indicates
that courts have discretion only when the party corrects its
omission promptly, not as a blanket rule.
    Marcure’s atextual reading of Rule 11(a) relies primarily
on dicta from our decision in Kovilic Construction Company,
Inc. v. Missbrenner, 

 (7th Cir. 1997). There, we ad-
dressed whether the district court properly dismissed a case
for counsel’s failure to file an appearance and affidavit, as re-
quired by local rules. Although the district court referenced
Rule 11(a) as one of the bases for dismissal, we observed that
this rule was not at issue. The problem was that the plaintiff
had failed to file documents at all, not that it had filed un-
signed documents. 

. Despite that acknowledgement,
we then opined that if Rule 11(a) had been at issue, it would
have been inappropriate for the district court to strike any un-
signed documents. We relied on precedent for this conclusion,
stating that “we have held that documents should be struck
only where the failure to sign severely prejudiced the oppos-
ing party.” 

 We added that “the district court made no find-
ing that Kovilic was prejudiced by [the] omissions.” 

    From this, Marcure infers that the district court had to
make a prejudice finding prior to striking his unsigned docu-
ment. Unfortunately for Marcure, Kovilic is not controlling on
this point. As we acknowledged in Kovilic, Rule 11(a) was not
implicated in that case. Our discussion of the rule was non-
binding dicta. 2 Even considering that dicta on the merits, we


2 At the time that we decided Kovilic, the 1993 version of the Federal Rules
of Civil Procedure applied. Under that version, Rule 11(a) provided in rel-
evant part:
6                                                            No. 19-2978

think that Kovilic misinterpreted Rule 11(a) and misread our
earlier precedent. 3 Kovilic relied upon United States v.
Kasuboski, 

 (7th Cir. 1987), for its understanding
of Rule 11(a). But Kasuboski does not support Kovilic’s dicta.
    Unlike Kovilic, our decision in Kasuboski squarely involved
Rule 11(a). In Kasuboski, the government filed an unsigned
document in the district court. It corrected the deficiency
three days later, however, and the district court consequently
declined to strike it. In affirming the district court, we ob-
served: “In cases such as this, which do not involve the issue
of sanctions for filing an unfounded motion, the failure to sign
will not cause a motion to be stricken unless the adverse party



    Every pleading, written motion, and other paper shall be signed
    by at least one attorney of record in the attorney’s individual
    name, or, if the party is not represented by an attorney, shall be
    signed by the party…. An unsigned paper shall be stricken unless
    omission of the signature is corrected promptly after being called
    to the attention of the attorney or party.
Fed. R. Civ. P. 11(a) (1993) (emphasis added). The current version, imple-
mented by the 2007 amendments to the rules, is substantially the same
with the primary exception being that “must” has been substituted for
“shall.” This change was part of the Rules Committee’s larger effort—
dubbed the Style Project—to synthesize and modernize the rules’ termi-
nology. Fed. R. Civ. P. 1, Adv. Comm. Note (2007). One of the global
changes made to the rules was the removal of “shall” and replacement of
it with synonyms such as “must.” 

 The Rules Committee clarified in its
2007 Advisory Note that these changes were stylistic, not substantive. 

The Rule 11(a) analysis thus remains the same whether the Court is apply-
ing the 1993 version or the current version.
3 Because this opinion clarifies the Court’s precedent by rejecting the dicta

in Kovilic, it was circulated to all active judges pursuant to Circuit Rule
40(e). No judge voted to hear the case en banc.
No. 19-2978                                                   7

has been severely prejudiced or misled by the failure to sign.”

.
    Marcure isolates this sentence to argue that we require
courts to conduct a prejudice inquiry before they may strike
an unsigned document under Rule 11(a). But that ignores the
context of the case. Kasuboski involved the exception to Rule
11(a)’s general mandate—cases where the litigant promptly
corrects the unsigned filing. In those instances, Rule 11(a) no
longer requires that courts “must” strike the document. Our
discussion limited how courts exercise their discretion in that
narrow circumstance. Kasuboski did not, however, endorse a
reading of Rule 11(a) that requires a prejudice inquiry prior to
striking an uncorrected document. Indeed, it says just the op-
posite: “Rule 11 of the Federal Rules of Civil Procedure pro-
vides that an unsigned motion shall be stricken ‘unless it is
signed promptly after the omission is called to the attention
of the movant.’” 

 (emphasis added). By suggesting other-
wise, both Marcure and Kovilic overread our caselaw.
   As an alternative to his precedential argument, Marcure
suggests that reading Rule 11(a) to require that courts exercise
discretion to determine whether to strike an unsigned docu-
ment is consistent with the rule’s purpose. Even assuming
that this interpretation is consistent with one of Rule 11(a)’s
goals, it remains untenable. Marcure’s reading of Rule 11(a)
ignores the rule’s plain text and so fails to persuade us. Bus.
Guides, Inc. v. Chromatic Comm’n Enters., Inc., 

,
540–41 (1991) (“As with a statute, our inquiry is complete if
we find the text of the Rule to be clear and unambiguous.”).
   Marcure’s final argument is that, regardless of Rule 11(a)’s
meaning, the district court erred in striking his response. He
contends that the court gave him insufficient time to correct
8                                                    No. 19-2978

his filing and that he did attempt correction. To his first point,
Marcure suggests that the six days that the court gave him to
correct his response were insufficient considering his recent
move, the fact that he received notices from the district court
by mail, and the lack of evidence that he checked his mailbox
daily. But he cites no authority for his view that, under these
circumstances, Rule 11(a) required that the district court grant
him more time to correct his response. And the record sug-
gests that Marcure could access the electronic docket entries.
He responded to the district court’s show-cause order—dur-
ing a time when the court’s mailed notices were being re-
turned as undeliverable—within one week of the order’s en-
try on the electronic docket. There is no evidence to suggest
that he did not, or could not, also view the court’s docket en-
try notice of his filing deficiency.
    Marcure alternatively insists that his handwritten note, at-
tached to his response to the defense attorneys’ motion, shows
that he tried to correct his response to the police officers’ mo-
tion. We do not follow that logic. That note—stating “Plaintiff
signed and numbered pages thank you”—was inscribed on
an amended response to a different motion, filed more than a
month after Marcure filed his response to the officers’ motion.
And it did not reference the officers’ motion or the court’s no-
tice of deficiency. Even if we were to construe it as an at-
tempted correction, it is difficult to view this attempt—made
weeks after the district court notified Marcure of his deficient
response—as a prompt correction. The district court’s deci-
sion to strike the response was not an abuse of discretion.
   For these reasons, the district court did not err in interpret-
ing Rule 11(a) as mandatory or striking Marcure’s unsigned
response. The text of the rule is clear: Rule 11(a) does not give
No. 19-2978                                                     9

courts discretion to overlook a party’s failure to correct
promptly an unsigned filing, much less require a prejudice in-
quiry prior to striking such a filing. We decline Marcure’s in-
vitation to impart a broader reading than the text of the rule
can bear.
                               III.
     Marcure’s Rule 12(b)(6) argument has more merit. Rule
12(b)(6) provides that a party may assert as a defense its op-
ponent’s “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). While the text does not dis-
cuss the burden of proof, every circuit court to address this
issue—this Court included—has interpreted Rule 12(b)(6) as
requiring the movant to show entitlement to dismissal. Gunn
v. Cont’l Cas. Co., 

, 806 (7th Cir. 2020) (“It is the
defendant’s burden to establish the complaint’s insuffi-
ciency.”); see Charles Alan Wright & Arthur R. Miller, 5A Fed-
eral Practice and Procedure § 1357 (3d ed. 2019) (“All federal
courts are in agreement that the burden is on the moving
party to prove that no legally cognizable claim for relief ex-
ists.”). The question presented in this appeal is related but dis-
tinct: Does a court impermissibly fail to hold the movant to
that burden by granting a Rule 12(b)(6) motion on the sole ba-
sis that it is unopposed? We agree with the majority approach
and hold that it does.
                               A.
   Although we have not addressed this issue with respect to
Rule 12(b)(6), we answered the question in the affirmative in
the analogous context of Rule 56 motions for summary judg-
ment. Raymond v. Ameritech Corp., 

 (7th Cir.
2006). Our reasoning was straightforward: “The ultimate
10                                                   No. 19-2978

burden of persuasion remains with [the movant] to show that
it is entitled to judgment as a matter of law.” 

 Put another
way, Rule 56 imposes an affirmative obligation on a movant
that we cannot ignore merely because a nonmovant provides
no responsive arguments. The same logic applies to Rule
12(b)(6).
    To be sure, Rule 12(b)(6) differs in that its text, unlike that
of Rule 56, does not expressly allocate the burden of proof to
the movant. But our judicial interpretation of Rule 12(b)(6) has
understood it to do just that. Both rules thus impose the same
requirement—movants must prove entitlement to relief. The
officers proffer no explanation for why the disposition of un-
opposed motions under these two rules ought to differ de-
spite that identical requirement.
    Our Rule 12(b)(6) caselaw supports that it should not. In
Bolt v. Loy, we listed “three possible grounds for dismissing a
suit because a response” is overdue: (1) the nonmovant’s ac-
tion evinces intent to abandon suit; (2) there is failure to pros-
ecute; or (3) dismissal is a sanction for the nonmovant’s inac-
tion. 

 (7th Cir. 2000). Under any of those
grounds, the lack of response alone is insufficient—the dis-
trict court must construe the lack of response as indicating an
intent to abandon suit or as meriting a sanction. 

 Here, the
district court made no such determination. The only explana-
tion for the court’s dismissal of Marcure’s claims was the un-
opposed motion to dismiss.
    The majority of circuit courts have made explicit what our
precedent implies. Of the eight circuit courts to consider this
issue, six have held that courts may not grant Rule 12(b)(6)
No. 19-2978                                                         11

motions solely because they are unopposed.4 The D.C. Circuit
takes a middle approach and “reluctantly” permits courts to
grant Rule 12(b)(6) motions on this basis—but only if the court
does so without prejudice. Cohen v. Bd. of Trustees of the Univ.
of the Dist. of Col., 

 (D.C. Cir. 2016). We see no
reason for this distinction. The D.C. Circuit itself expressed
doubts about its conclusion but was bound by circuit prece-
dent. 

.
    Only the First Circuit has adopted the position urged by
the police officers. The Court acknowledged that “the mere
fact that a motion to dismiss is unopposed does not relieve the
district court of the obligation to examine the complaint it-
self.” Pomerleau v. W. Springfield Pub. Sch., 

(1st Cir. 2004). But it held that Rule 12(b)(6)’s requirement
could nevertheless be overridden by local rules if “the result
does not clearly offend equity.” 

 We do not find that rea-
soning persuasive. Neither the First Circuit nor the officers
square this logic with Rule 83(a)(1), which provides that local
rules “must be consistent with” the Federal Rules of Civil Pro-
cedure. Fed. R. Civ. P. 83(a)(1). We thus reject the First Cir-
cuit’s approach in favor of the majority view, which has the
sounder reading of the federal rules and more closely aligns
with our own treatment of Rule 12(b)(6).
                                  B.


4 Giummo v. Olsen, 

, 924–25 (11th Cir. 2017) (per
curiam); Issa v. Comp USA, 

 (10th Cir. 2003);
McCall v. Pataki, 

, 322–23 (2d Cir. 2000); Stackhouse v.
Mazurkiewicz, 

 (3d Cir. 1991); Carver v. Bunch, 

, 453–55 (6th Cir. 1991); Ramsey v. Signal Delivery Serv., Inc., 

 (5th Cir. 1980).
12                                                   No. 19-2978

    In the absence of clear support within our Rule 12(b)(6)
caselaw, the officers lean heavily on the local rule cited by the
district court. Central District of Illinois Local Rule 7.1(B)(2)
provides: “Any party opposing a motion filed pursuant to
(B)(1) must file a response to the motion, including a brief
statement of the specific points or propositions of law and
supporting authorities upon which the responding party re-
lies. The response must be filed within 14 days after service of
the motion and memorandum. If no response is timely filed,
the presiding judge will presume there is no opposition to the
motion and rule without further notice to the parties.”
    We note first that the text of the local rule does not require
or expressly authorize courts to grant a motion solely because
there is no response filed. It requires a response, provides that
the court may presume no opposition if there is no response,
and permits the court to rule on the motion without addi-
tional notice. But courts may rule on an unopposed Rule
12(b)(6) motion by reaching the merits rather than granting it
on the basis that it is unopposed. Nothing in the local rule au-
thorizes courts to grant motions solely because they are un-
opposed, and the rule is not nullified by our rejection of this
application of it.
    Even if the local rule required the district court’s applica-
tion of it, we hold pursuant to Rule 83(a)(1) that a local rule
cannot abridge a Federal Rule of Civil Procedure. The officers
argue that our precedent permits courts to strictly enforce lo-
cal rules, even in the face of contrary federal rules. For author-
ity, they cite two of our cases addressing this interplay: Tobel
v. City of Hammond and Stanciel v. Gramley.
    Tobel was an appeal of the denial of a Rule 60(b)(3) motion
to vacate judgment, which we affirmed. 

 (7th Cir.
No. 19-2978                                                     13

1996). The officers cite Tobel for our observation that “the dis-
trict court clearly has authority to enforce strictly its Local
Rules, even if a default results.” 

. While true, how-
ever, that statement does not authorize strict enforcement of
local rules in a manner that conflicts with federal rules of pro-
cedure. Further, we based our decision in Tobel on an analysis
of the district court’s application of Rule 60(b)(3), not its au-
thority under the local rule used to grant the motion that the
plaintiffs sought to vacate under Rule 60(b)(3). Nothing about
Tobel prevents us from adopting Marcure’s interpretation of
Rule 12(b)(6).
    Our discussion in Stanciel is more salient. There, the plain-
tiff responded to a motion to dismiss but did not address all
the challenged claims. 

, 577–78 (7th Cir. 2001). The
district court “deemed confessed” the unaddressed claims
and dismissed them, relying on the same local rule at issue
here. 

 We affirmed, explaining that the “decision whether
to apply [a local] rule strictly or to overlook any transgression
is one left to the district court’s discretion.” 

. We em-
phasized that the plaintiff had not shown that the district
court abused its discretion in applying the local rule and that
any error in dismissal was harmless. 

 at 579–80.
    Stanciel is distinguishable from this case. In contrast to
Marcure, Stanciel filed a response that defended only some of
the claims challenged by the motion to dismiss, despite the
district court’s clear warning of the consequences for failure
to defend them. Stanciel’s choice could be understood as
waiver of the claims that he left unaddressed. And the district
court seemed to take this view, as it “deemed confessed” the
unaddressed claims. More importantly, Stanciel, unlike Mar-
cure, did not raise the issue of the local rule’s compatibility
14                                                            No. 19-2978

with Rule 12(b)(6). Our holding thus did not address this con-
flict. Stanciel does not hold that local rules can supersede the
directive of Rule 12(b)(6).
                                     IV.
    Our decision today is guided by an overarching principle:
“We give the Federal Rules of Civil Procedure their plain
meaning.” Bus. Guides, Inc., 

. For that reason,
we hold that Rule 11(a) requires courts to strike unsigned fil-
ings that are not corrected promptly and that Rule 12(b)(6)
prevents courts from granting unopposed motions solely be-
cause there is no response. 5 The district court’s dismissal of
Marcure’s claims against the police officers is reversed, and
we remand the case for further proceedings consistent with
this opinion.




5 Our holding does not render district courts powerless to dispose of mo-
tions to dismiss in the face of inactive plaintiffs. Courts remain free to rule
on Rule 12(b)(6) motions even absent a response by looking to the com-
plaint itself to determine the sufficiency of the pleadings. They may also
dismiss inactive cases for want of prosecution, if appropriate.