Right Law, Wrong Stage

A case can be real, accurately quoted, good law, and squarely on point, and still be unusable in the motion that cites it. The reason is procedural posture. Every holding is announced under a standard: a test the court applied to a defined body of material, with the burden allocated to a particular party, in a particular forum. Detached from that standard, a holding does not become a more general rule. It becomes a different proposition, and the court that decided the case never decided it.

Citators do not report this. A citator answers a question about subsequent history: whether the decision has been reversed, overruled, limited, or criticized. It does not answer a question about fit: whether the decision was rendered under the standard the citing motion invokes. A summary judgment opinion cited in a motion to dismiss will show no negative treatment, because nothing in its later history has changed. The flag is green. The citation is still wrong.

The question, then, is not whether the case is good law. It is whether the proposition for which it is cited survives translation into the standard the motion invokes.

This paper sets out a taxonomy of posture mismatch in four categories, and then states the distinction on which the taxonomy depends: which propositions carry across procedural stages and which do not.

I. Four Kinds of Posture Mismatch

1. Standard mismatch

The dispositive motions ask different questions. A federal motion to dismiss under Rule 12(b)(6) asks whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A motion for summary judgment asks whether there is a genuine dispute as to any material fact and whether the movant is entitled to judgment as a matter of law, with materiality fixed by the governing substantive law.

The first question concerns allegations. The second concerns evidence. A holding that answers one does not answer the other. A court that grants summary judgment because no reasonable jury could find causation on the record has not held that causation was inadequately pleaded. The claim may have been pleaded adequately; it reached summary judgment, after all.

2. Record mismatch

Standard mismatch concerns the test. Record mismatch concerns the material to which the test is applied. A motion under Rule 12(b)(6) is confined to the pleadings and to matters properly considered with them. If matters outside the pleadings are presented and not excluded, Rule 12(d) requires the court to treat the motion as one for summary judgment. The rule states the boundary with precision because the two stages operate on different material.

A case decided on a developed record carries that record into every sentence of its reasoning. When such a case says the plaintiff "offered no evidence" of an element, the statement describes a record. Cited in a motion confined to the pleadings, it asserts something the moving party cannot establish at that stage, and it invites the court to consider an absence of evidence that no party has yet been required to produce.

3. Burden mismatch

The allocation of burdens differs by forum, even where the stage is nominally the same. Under Celotex, a federal movant who does not bear the burden of persuasion at trial may discharge its initial burden by showing that there is an absence of evidence to support the nonmoving party's case, and it need not produce materials negating the opponent's claim. Where the movant bears the trial burden, Adickes requires it to establish the element affirmatively. These are two routes, not a rule and an exception, and Adickes has not been overruled.

California adopted much of the federal approach through amendments to its summary judgment statute, but not all of it. In Aguilar v. Atlantic Richfield Co., the California Supreme Court held that a defendant may carry its burden by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. The same opinion holds that the defendant must still present evidence to that effect, and may not simply point out the absence. A California motion that relies on the federal pointing-out route, and cites federal authority for the proposition that no evidence need accompany the motion, misstates the movant's burden in the court in which it is filed. Every citation in it may be accurate.

4. Forum mismatch

The fourth category is the most easily overlooked, because the language is so familiar. Twombly and Iqbal construe Federal Rule of Civil Procedure 8(a)(2). They do not govern pleading in state courts, which construe their own rules and statutes. California is a fact-pleading jurisdiction: the complaint must contain a statement of the facts constituting the cause of action, and a general demurrer tests whether the pleading states facts sufficient to constitute a cause of action. A demurrer that argues the complaint fails to state a "plausible" claim, and cites Iqbal for the standard, has imported a federal test into a proceeding governed by a different one.

The mismatch runs in both directions. Twombly retired, for federal purposes, the "no set of facts" formulation of Conley v. Gibson. Several state courts of last resort have declined to follow Twombly and continue to apply their traditional standards; Washington's is one. The same sentence is therefore obsolete in one courtroom and controlling in another. Currency is a property of a proposition relative to a forum, not of the proposition alone.

II. What Carries Across Stages, and What Does Not

A taxonomy of error is useful only if it also indicates what may be used safely. The operative distinction is between propositions that are independent of the record and the standard, and propositions that are constituted by them.

Propositions that usually carry. Element definitions, substantive rules of law, and questions of statutory or contractual construction decided as matters of law generally carry across stages. If a court holds that a cause of action requires four elements, the element list is not a function of the posture in which it was stated. Nor is a holding that a statute does not reach a category of conduct, or that a defendant owes no duty to a class of plaintiffs as a matter of law. These propositions would be true of any record, because they concern what the law requires rather than what the evidence showed.

Propositions that do not carry. Sufficiency holdings do not carry. "Plaintiff offered no evidence that the defendant knew of the defect" is a statement about a record. "The complaint does not allege facts showing reliance" is a statement about a pleading. Neither states a rule. Each reports the application of a standard to particular material, and neither can be transferred to a proceeding that applies a different standard to different material.

The intermediate case. Some holdings are phrased as sufficiency holdings but rest on a rule of law. A court may hold that a particular kind of fact, even if proven, cannot establish an element. The holding appears in an evidentiary posture, but its force is doctrinal: the fact is legally insufficient in any posture. Such a proposition carries, provided it is cited for the rule and not for the record.

The test that separates these categories can be stated as a single question:

Would the proposition remain true if the record were different? If it would, the proposition is a rule and may travel. If it would not, the proposition is an application and must stay where it was decided.

III. Can a Summary Judgment Case Be Cited in a Motion to Dismiss?

Yes, but only for propositions that do not depend on the summary judgment record or standard: element definitions and pure rules of law. Holdings about what the evidence did or did not show do not transfer to a motion confined to the pleadings.

This is also the answer to a question now asked of AI research tools: how to prevent them from using summary judgment cases in a motion to dismiss. The instruction "do not cite summary judgment cases" is at once overinclusive and underinclusive. It excludes the element definitions that summary judgment opinions often state with particular care, and it admits a motion to dismiss case from another forum that applies a pleading standard the court does not use. The correct instruction is narrower. Cite a case decided at another stage only for propositions that do not depend on that stage's record or standard, and state the governing standard only from authority applying it in the forum.

IV. Why the Failure Is Structural

Posture mismatch is not a fabrication problem, and the instruments built to detect fabrication do not detect it. A citation verifier checks existence and support: whether the case exists, and whether it says what the brief says it says. A posture-mismatched citation passes both checks. The case exists. It says precisely what the brief reports. The defect lies in a third predicate, applicability, which requires a judgment about the relation between the cited proposition and the citing motion.

The failure is also induced by the way retrieval systems represent law. A system that retrieves passages by textual similarity will rank a summary judgment opinion discussing causation close to a motion to dismiss about causation, because the two share vocabulary. The passage is textually relevant and procedurally unusable. Unless the system records, for each holding, the standard under which it was decided, the forum whose rules it applied, and whether it states a rule or reports an application, it cannot distinguish the two. Neither, reading quickly, can the lawyer.

The remedy has two parts. The first is representational: holdings must carry their posture, standard, forum, and character as structured attributes, so that retrieval can filter on them before any text reaches a draft. The second is professional: the lawyer must fix the stage, standard, burden, and forum before research begins, and must test each cited proposition against them before filing.

V. A Pre-Filing Test for Posture

Each cited proposition in a dispositive motion should be tested against four questions.

1. Standard. Was the proposition decided under the standard this motion invokes? If not, is it cited only for a rule that does not depend on that standard?
2. Record. Does the proposition describe what a record contained? If so, is this a motion in which the court may consider a record?
3. Burden. Does the proposition assume an allocation of the burden that differs from the allocation in this forum at this stage?
4. Forum. Is the governing standard stated from authority applying it in this court, rather than from authority construing another sovereign's rules?

A citation that fails any of these tests may be real, accurate, and good law. It is nonetheless the wrong citation, and no citator will say so.

Sources: Fed. R. Civ. P. 12(b)(6), 12(d), 56(a); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Conley v. Gibson, 355 U.S. 41 (1957); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58 (1970); Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 854 (2001); Cal. Code Civ. Proc. §§ 425.10(a)(1), 430.10(e); McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96 (2010).