Sahu v. Union Carbide Corporation, No. 06-5694 (2d Cir. 2008)

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06-5694-cv Sahu v. Union Carbide Corporation 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: May 28, 2008 Decided: November 3, 2008) 5 Docket No. 06-5694-cv 6 ------------------------------------- 7 8 9 JANKI BAI SAHU, SHANTI BAI, MUNEE BI, QAMAR SULTAN, FIRDAUS BI, NUSRAT JAHAN, PAPPU SINGH, JAMEELA BI, MEENU RAWAT, BANO BI, MAKSOOD AHMED, BABU LAL, and KAVAL RAM, 10 Plaintiffs-Appellants, 11 - v. - 12 UNION CARBIDE CORPORATION, WARREN ANDERSON, 13 Defendants-Appellees. 14 ------------------------------------- 15 16 Before: KEARSE, CALABRESI, and SACK, Circuit Judges. Appeal from a judgment of the United States District 17 Court for the Southern District of New York (John F. Keenan, 18 Judge) granting summary judgment in favor of defendants Union 19 Carbide Corporation and Warren Anderson on all the claims of the 20 plaintiffs related to water pollution allegedly caused by the 21 operations at a factory owned and operated by a former Union 22 Carbide subsidiary in Bhopal, India. 23 plaintiffs' claims for injunctive relief and their theories of 24 liability other than their attempt to pierce the corporate veil 25 between Union Carbide and its subsidiary, the district court, sua With respect to the 1 sponte, converted the defendants' motion to dismiss under Federal 2 Rule of Civil Procedure 12(b)(6) to one for summary judgment 3 under Federal Rule of Civil Procedure 56 and granted the motion. 4 We conclude that the district court did not give the plaintiffs 5 sufficient notice to allow them adequately to respond to the 6 converted summary judgment motion. 7 Vacated and Remanded. 8 9 10 11 12 RICHARD S. LEWIS, Cohen Milstein Hausfeld & Toll, PLLC (Matthew K. Handley, Reena Gambhir, of counsel), Washington, DC, for PlaintiffsAppellants; 13 14 Curtis V. Trinko, New York, NY, for Plaintiffs-Appellants; 15 16 17 18 19 20 H. Rajan Sharma, Edison, NJ, for Plaintiffs-Appellants; 21 22 23 Esther Berezofsky, Gerald Williams, Williams Cuker Berezofsky, Cherry Hill, NJ, for Plaintiffs-Appellants; 24 25 26 27 Neal A. DeYoung, Koskoff Koskoff & Bieder, PC, Bridgeport, CT, for Amici Curiae Members of Congress, in support of Plaintiffs-Appellants; 28 29 30 WILLIAM A. KROHLEY, Kelley Drye & Warren LLP (William C. Heck, of counsel), New York, NY, for Defendants-Appellees. 31 32 Richard Herz, Marco Simons, EarthRights International, Washington, DC, for Plaintiffs-Appellants; SACK, Circuit Judge: This appeal requires us to consider, at the threshold, 33 whether we may exercise appellate jurisdiction over both of the 34 district court's orders disposing of the plaintiffs' claims under 2 1 the circumstances presented even though the plaintiffs' notice of 2 appeal specifies only one order that appears to resolve only one 3 claim. 4 court may, sua sponte, convert a motion to dismiss under Federal 5 Rule of Civil Procedure 12(b)(6) into a motion for summary 6 judgment under Federal Rule of Civil Procedure 56. 7 We also consider the circumstances under which a district We conclude that we have jurisdiction to review all the 8 appellants' claims and that the district court erred in the 9 manner in which it converted the defendants' motion to dismiss 10 into a motion for summary judgment. We therefore vacate the 11 judgment of the district court and remand for further 12 proceedings. BACKGROUND 13 14 On November 8, 2004, the plaintiffs-appellants, who are 15 residents or property owners in Bhopal, India, filed a complaint 16 in the United States District Court for the Southern District of 17 New York (John F. Keenan, Judge) seeking injunctive and monetary 18 relief under New York law for injuries allegedly suffered as a 19 result of water pollution. 20 caused by the operation of a pesticide plant owned and operated 21 by Union Carbide India Limited ("UCIL"). 22 but is no longer, a subsidiary of defendant-appellee Union 23 Carbide Corporation ("Union Carbide"). 24 Warren Anderson was then Chief Executive Officer of Union 25 Carbide. This pollution, they allege, was UCIL is not a defendant. 3 UCIL was at the time, The defendant-appellee 1 Prior Litigation 2 The plaintiffs here were members of a putative class 3 that had previously sought to pursue a different lawsuit 4 involving the operation of the same Bhopal plant from which the 5 toxic chemical pollutants at issue here allegedly emanated. 6 class asserted a variety of claims arising under, inter alia, the 7 Alien Tort Claims Act, 28 U.S.C. § 1350. 8 Corp., No. 99 Civ. 11329(JFK), 2000 WL 1225789, at *5, 2000 U.S. 9 Dist. LEXIS 12326, at *14-15 (S.D.N.Y. Aug. 28, 2000). That Bano v. Union Carbide The Bano 10 plaintiffs' allegations centered around a disastrous leak of 11 toxic gas at the plant in 1984. 12 2000 U.S. Dist LEXIS 12326, at *1-2. 13 dismissed their claims because, it concluded, the plaintiffs 14 lacked standing to bring suit under India's Bhopal Gas Leak 15 (Processing of Claims) Act, and their claims were barred by a 16 settlement agreement between the government of India and Union 17 Carbide. 18 appeal, we affirmed this part of the district court's decision, 19 but remanded for further consideration of the plaintiffs' common- 20 law tort claims. 21 33 (2d Cir. 2001). 22 Bano, 2000 WL 1225789, at *1, The district court Id. at *14, 2000 U.S. Dist LEXIS 12326, at *42-*43. On Bano v. Union Carbide Corp., 273 F.3d 120, 132- On remand, the remaining claims were pursued by one 23 Haseena Bi, individually, and three organizations seeking to 24 represent the interests of other persons allegedly injured in the 25 disaster. 26 11329(JFK), 2003 WL 1344884, at *2, 2003 U.S. Dist LEXIS 4097, at See Bano v. Union Carbide Corp., No. 99 Civ. 4 1 *6-7 (S.D.N.Y. Mar. 18, 2003). The defendants moved to dismiss 2 those claims. 3 The district court granted the defendants' motion, concluding 4 that 1) the plaintiffs' personal-injury claims were time-barred; 5 2) their property-damage claims were also time-barred; 3) the 6 plaintiff organizations lacked standing to pursue their damages 7 claims; 4) injunctive relief requiring remediation of 8 contaminated soil and groundwater was impracticable; and 5) 9 injunctive relief requesting medical monitoring would be See id. at *3, 2003 U.S. Dist LEXIS 4097, at *8. 10 inequitable. 11 at *15-*18, *22-*24, *25-*27. 12 See id. at *5-*6, *8-*9, 2003 U.S. Dist LEXIS 4097, Bi and the organizations appealed. "[W]e affirm[ed] 13 the judgment of the district court except to the extent that it 14 dismissed [the individual plaintiff] Bi's claims for monetary and 15 injunctive relief for alleged injury to her property. 16 those claims, we vacate[d] the judgment and remand[ed] for 17 further proceedings, including consideration of whether those 18 claims may be pursued in a class action." 19 Corp., 361 F.3d 696, 702 (2d Cir. 2004). 20 As to Bano v. Union Carbide On remand, the plaintiffs sought class certification. 21 But the court interpreted their claims to seek the kind of on- 22 site remediation that had previously been rejected. 23 concluded that it could not "allow [additional class 24 representatives] to intervene in or to certify a class for a 25 claim that [had already been] dismissed." 26 Corp., No. 99 Civ. 11329(JFK), 2005 WL 2464589, at *4, 2005 U.S. 5 It therefore Bano v. Union Carbide 1 Dist. LEXIS 22871, at *11 (S.D.N.Y. Oct. 5, 2005). 2 decided that "[e]ven if [that] claim remained in the case, the 3 putative class would not be certified because it fails Rule 23's 4 requirements." 5 the individual plaintiff, Bi, "owns no property, [the plaintiffs] 6 can bring no viable claim." 7 8 Id. It further "Finally," the court concluded, inasmuch as Id. We affirmed by summary order. Bano v. Union Carbide Corp., 198 F. App'x 32 (2d Cir. 2006). 9 District Court Proceedings 10 This lawsuit was filed by "plaintiffs whose personal 11 injury claims [unlike those in Bano] are not time-barred as they 12 were discovered within the three-year statute of limitations 13 period." 14 n.3 (S.D.N.Y. 2005) ("Sahu I"). 15 they "own or have a beneficial interest in property and/or water 16 wells in the affected communities." 17 Sahu v. Union Carbide Corp., 418 F. Supp. 2d 407, 409 The plaintiffs also allege that Compl. 1-2. According to their complaint, the plaintiffs have 18 suffered a variety of ailments caused by "the highly carcinogenic 19 chemicals and toxic pollutants in the drinking water supply 20 emanating from the premises of the former UCIL plant." 21 e.g., id. ¶ 41. 22 operate the factory, the plaintiffs contend that the defendants 23 may nonetheless be held liable for the plaintiffs' injuries under 24 any of four theories of relief: 1) that "Union Carbide was a 25 direct participant and joint tortfeasor in the activities and 26 decisions that resulted in the environmental pollution at issue"; See, Although the defendants did not directly own or 6 1 2) that "Union Carbide conspired with and/or worked in concert 2 with UCIL to cause, exacerbate and/or conceal the pollution 3 problem in Bhopal"; 3) that Union Carbide "exercised sufficient 4 actual control over UCIL, its Indian affiliate, that the latter 5 was merely the general or specific agent . . . of the former"; or 6 4) that UCIL acted as Union Carbide's alter-ego, justifying the 7 piercing of the corporate veil between Union Carbide and UCIL. 8 Id. ¶ 60. 9 As factual support for these claims, the plaintiffs 10 allege that Union Carbide "made the decision to 'backwards- 11 integrate' UCIL from a mere formulation facility for pesticides 12 into a manufacturing plant." 13 so because the law of India prohibited foreign ownership of more 14 than forty percent of local industries unless the foreign owners 15 helped transfer technology to the local subsidiary. 16 72. 17 "improper, inadequate and unproven technology . . . to UCIL for a 18 manufacturing process involving highly toxic and volatile 19 chemical agents." 20 Id. ¶ 73. They assert that it did Id. ¶¶ 71- In implementing this plan, Union Carbide transferred Id. ¶ 78. The plaintiffs also contend that Union Carbide was 21 aware of the danger of water pollution and other environmental 22 damage yet failed to take adequate precautions to prevent it. 23 Prior to the Bhopal plant's catastrophic gas leak in 1984, they 24 say, "Union Carbide did not take any mitigating steps, measures 25 or actions to control, limit or otherwise remediate the problems 26 that would eventually lead, as the Company's own engineers had 7 1 advised, to a massive environmental pollution problem with the 2 subsurface water supply." 3 these acts or omissions are attributed to UCIL, Union Carbide 4 "ratified, approved and/or acquiesced in that failure to act 5 subsequently." 6 Id. ¶ 93. Moreover, to the extent Id. Finally, the plaintiffs fault Union Carbide's response 7 to the 1984 disaster. They contend that the cleanup effort 8 undertaken by the company was only "a site-based project, 9 undertaken at minimal expense, which would conceal both the 10 seriousness of on-site pollution and the potential risks of off- 11 site contamination, while enabling Union Carbide to recover money 12 from the sale of its remaining assets at UCIL." 13 Id. ¶ 95. In support of their allegations in the complaint, the 14 plaintiffs refer to, paraphrase, and quote from -- but do not 15 include or append -- documents obtained in the course of the Bano 16 litigation and otherwise. 17 Union Carbide corporate charter and policy manual); id. ¶ 68 18 (referring to Union Carbide internal manuals); id. ¶ 76 19 (referring to 1973 Capital Budget Proposal); id. ¶ 85 (referring 20 to Union Carbide Engineering Department document, dated July 21, 21 1972); id. ¶ 91 (referring to environmental survey conducted by 22 Arthur D. Little, Inc. and India's National Environmental 23 Engineering Research Institute); id. ¶ 109 (referring to report 24 entitled "Presence of Toxic Ingredients in Soil/Water Samples 25 Inside Plant Premises"); id. ¶ 111 (referring to Union Carbide 26 "Business Confidential" document entitled "Response to See, e.g., id. ¶ 64 (referring to 8 1 Allegations of Environmental Contamination Around the Bhopal 2 Plant Site," dated May 22, 1990). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By motion dated May 18, 2005, the defendants applied to the district court for an order pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, dismissing the complaint and granting summary judgment, on the grounds: (1) that the documentary evidence referred to or which is integral to the complaint, and thus is part of the complaint, flatly contradicts the conclusory allegations in the complaint that [Union Carbide can be held liable as a joint tortfeasor, or because it conspired or acted in concert with UCIL,] and that all claims against defendants based on those alleged grounds should accordingly be dismissed; (2) that there is no equitable basis for plaintiffs to seek to pierce the veil of UCIL, now Eveready Industries India Ltd., which operated the Bhopal plant which is the subject of this action, and which is an existing and viable corporation in India, to impose liability on Union Carbide as a former shareholder of UCIL; and (3) that the plaintiffs' claims for injunctive relief and medical monitoring are infeasible and otherwise inappropriate. 29 Notice of Motion, Sahu v. Union Carbide Corp., No. 04-CV- 30 08825(JFK) (S.D.N.Y. dated May 18, 2005; filed Aug. 5, 2005). 31 The defendants included with their motion an affidavit of H. 32 Rajan Sharma, a New Jersey-based lawyer who is among counsel for 33 the plaintiffs in this case. The affidavit had been submitted in 34 the earlier Bano litigation. It included ninety-seven exhibits 35 comprising thousands of pages of documentary evidence. 36 Affidavit of H. Rajan Sharma in Opposition to Defendants' Motion 37 for Dismissal and/or for Summary Judgment, Bano v. Union Carbide 38 Corp., No. 99 Civ. 11329(JFK) (S.D.N.Y. Sept. 20, 2002) ("Sharma 9 See 1 Affidavit"). 2 attached to the Sharma Affidavit as exhibits. 3 All the documents referred to in the complaint were See id. The plaintiffs, in opposition to the defendants' 4 motion, argued that it sought summary judgment only as to the 5 plaintiffs' attempt to pierce the corporate veil between Union 6 Carbide and UCIL, whereas the defendants' motion as to the non- 7 veil-piercing claims could be decided on the pleadings alone. 8 They argued that only the veil-piercing claim was related to 9 facts alleged by the defendants beyond the scope of the 10 plaintiffs' pleadings. See Memorandum of Law in Opposition to 11 Motion To Dismiss and/or for Summary Judgment 2, Sahu v. Union 12 Carbide Corp., No. 04 Civ. 8825(JFK) (S.D.N.Y. dated July 6, 13 2005; filed Aug. 9, 2005) ("Memorandum in Opposition"); see also 14 Statement of Defendants Pursuant to Rule 56.1 of the Civil Rules 15 of This Court, Sahu v. Union Carbide Corp., No. 04 Civ. 8825(JFK) 16 (S.D.N.Y. dated May 17, 2005; filed Aug. 5, 2005); Sahu v. Union 17 Carbide Corp., 475 F.3d 465, 468 (2d Cir. 2007) (per curiam) 18 ("Sahu II") ("In August 2005, defendants moved for summary 19 judgment on the corporate veil-piercing claim and to dismiss the 20 rest of the claims under Rule 12(b)(6) of the Federal Rules of 21 Civil Procedure."). 22 footnote, that "if the Court should decide to convert Points I, 23 II and IV [arguments based on claims other than veil-piercing] to 24 motions for summary judgment, Plaintiffs respectfully reserve 25 their right to submit a motion under Rule 56(f) for additional They notified the court, if only by 10 1 discovery needed to effectively oppose Points I, II and IV on the 2 merits." Memorandum in Opposition 3 n.3. 3 Without entertaining further motions by the parties, 4 the district court issued an order dated December 1, 2005, 5 dismissing all the claims of the plaintiffs except the veil- 6 piercing claim. 7 addressing the merits of these claims, the court noted that "both 8 parties [had] submitted [to the court] matters outside the 9 pleadings, which the Court considered, triggering mandatory See Sahu I, 418 F. Supp. 2d at 416. 10 conversion to summary judgment." 11 acknowledged that the plaintiffs, being the non-moving parties, 12 required notice of this conversion, it concluded that the 13 defendants' "submission of exhibits, affidavits, and the like 14 g[ave] the non-moving party notice of possible conversion." 15 at 410. 16 motion [was] a Rule 12(b)(6) motion to dismiss, it [was] 17 converted to a Rule 56 motion for summary judgment." 18 Based on the documents to which the court referred, it granted 19 the defendants' converted motion for summary judgment as to all 20 the claims of the plaintiffs except the veil-piercing claim. 21 at 412-15. 22 plaintiffs to engage in additional discovery as to the veil- 23 piercing claim. 24 Id. at 411. Before Although the court Id. Therefore, "[to] the extent any part of Defendants' Id. at 411. Id. It then granted a stay of that order to permit the Id. at 415-16. On December 22, 2005, the plaintiffs filed a notice of 25 appeal. We heard argument on November 15, 2006. 26 court had not at that time yet decided the remaining veil11 The district 1 piercing claim. 2 because "the plaintiffs ha[d] failed to show that the denial of 3 the permanent injunctive relief . . . needs immediate review to 4 be effectively challenged" and because we heard the appeal before 5 final judgment had been entered by the district court. 6 475 F.3d at 468. 7 On January 17, 2007, we dismissed the appeal Sahu II, On November 21, 2006, however, after we had heard oral 8 argument but before we filed our Sahu II decision, the district 9 court issued an opinion and order dated November 20, 2006, 10 dismissing the veil-piercing claim and denying the plaintiffs' 11 request for additional time for discovery. 12 Corp., No. 04 Civ. 8825(JFK), 2006 WL 3377577, 2006 U.S. Dist. 13 LEXIS 84475 (S.D.N.Y. Nov. 20, 2006) ("Sahu III"). 14 concluded: 15 16 17 18 19 20 21 Sahu v. Union Carbide The court For the reasons set forth above, defendants' motion for summary judgment dismissing plaintiffs' claims is granted. This case is closed, and the Court directs the Clerk to remove the case from the Court's docket. Id. at *11, 2006 U.S. Dist. LEXIS 84475, at *32. On the day following the entry of that order, November 22 22, 2006, the clerk of the district court entered the final 23 judgment from which appeal is sought: 24 25 26 27 28 29 ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated November 20, 2006, defendants' motion for summary judgment dismissing plaintiffs' claims is granted; accordingly the case is closed. 12 1 Judgment, Sahu v. Union Carbide Corp., No. 04 Civ. 8825(JFK) 2 (S.D.N.Y. Nov. 22, 2006). 3 all the claims of the plaintiffs were thus then ripe for appeal. 4 The district court's decisions as to Also prior to the filing of our 2007 decision in Sahu 5 II, on December 15, 2006, the plaintiffs filed a notice of appeal 6 in the district court stating their intention to seek review of 7 "the Opinion and Order of U.S. District Judge John F. Keenan of 8 the Southern District of New York entered in this action on the 9 21st day of November, 2006." Notice of Appeal, Sahu v. Union 10 Carbide Corp., No. 04 Civ. 8825(JFK) (S.D.N.Y. Dec. 15, 2006). 11 The plaintiffs did not refer specifically to the document that 12 purported to be the final judgment. 13 The notice was then filed in this Court, as was a 14 corresponding "Civil Appeal Pre-Argument Statement (Form C)." 15 These documents both stated that the plaintiffs appealed from the 16 November 21, 2006, order of the district court dismissing the 17 veil-piercing claim and denying the plaintiffs' request for 18 additional time for discovery rather than the order awarding 19 final judgment filed November 22, 2006. 20 the notice of appeal, the plaintiffs also referred to the appeal 21 from the December 1, 2001, district court order granting summary 22 judgment on the non-veil-piercing claims, and noted that that 23 appeal -- which would result in our decision in Sahu II a month 24 or two later - was then pending in this Court. 25 Post-Argument Letter Brief dated June 11, 2008, Ex. 2. 13 In the Form C, but not See Appellants' DISCUSSION 1 2 I. Appellate Jurisdiction 3 We must first determine which of the plaintiffs' claims 4 we have jurisdiction to consider. The issue arises because, as 5 noted, the November 21, 2006, order of the district court 6 addressed only the veil-piercing claim. 7 of appeal filed on December 15, 2006, instituting the present 8 appeal, it is this November 21, 2006, order from which this 9 appeal has been taken. According to the notice The plaintiffs' non-veil-piercing claims 10 had earlier been dismissed pursuant to the district court's order 11 filed December 1, 2005. 12 been appealed to us by notice of appeal filed December 22, 2005, 13 ultimately resulting in our decision in Sahu II, and the 14 subsequent mandate that ended that appeal. 15 2006, the date the notice of appeal in this case, specifically 16 referring to the district court's order regarding the veil- 17 piercing claims, was filed, the other appeal concerning the 18 district court's order dismissing the other claims had been 19 argued and was sub judice in this Court. 20 the December 15, 2006, notice of appeal effects an appeal not 21 only from the November 21, 2006, district court order (regarding 22 the veil-piercing claim) to which the notice explicitly refers, 23 but also from the December 1, 2005, district court order 24 (regarding the non-veil-piercing claims), which the notice does 25 not explicitly mention, and which we held unripe for review on 26 January 17, 2007, in Sahu II. And that order had already, separately, 14 As of December 15, The question is whether 1 A notice of appeal must "designate the judgment, order, 2 or part thereof being appealed." 3 But we "construe notices of appeal liberally, taking the parties' 4 intentions into account." 5 255, 256 (2d Cir. 1995). 6 our appellate jurisdiction "depends on whether the intent to 7 appeal from [a] decision is clear on the face of, or can be 8 inferred from, the notices of appeal." 9 New York, 498 F.3d 127, 131 (2d Cir. 2007). 10 Fed. R. App. P. 3(c)(1)(B). Shrader v. CSX Transp., Inc., 70 F.3d We have also observed, however, that New Phone Co. v. City of In the unusual circumstances presented here, we think 11 the plaintiffs' intent to appeal from both orders can be inferred 12 from the notice of appeal. 13 November 21, 2006, order, the plaintiffs found themselves in a 14 peculiar situation. 15 with respect to the December 1, 2005, district-court order 16 dismissing the non-veil-piercing claims. 17 us and had already been argued. 18 When the district court filed the They had already filed a notice of appeal That appeal was before As the last date by which a timely appeal from the 19 November 21 order had to be filed drew near, the plaintiffs could 20 not know either what the outcome of the then-pending appeal would 21 be or when we would decide it. 22 notice of appeal the order dismissing the veil-piercing claims -- 23 the only claims not yet subject to an appeal -- rather than the 24 final judgment dismissing all the claims. 25 Argument Statement, filed in this Court simultaneously with the 26 notice of appeal, they did refer specifically to the appeal of They identified in their new 15 In their "Form C" Pre- 1 the non-veil-piercing claims which was then pending. 2 the documents were "functional[ly] equivalent" to a notice of 3 appeal from the final judgment filed one day later. 4 v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988) (commenting 5 that "if a litigant files papers in a fashion that is technically 6 at variance with the letter of a procedural rule, a court may 7 nonetheless find that the litigant has complied with the rule if 8 the litigant's action is the functional equivalent of what the 9 rule requires," but holding that a notice of appeal that did not 10 name a party as an appellant was not the functional equivalent of 11 a notice of appeal filed by that party). 12 13 Together, See Torres We conclude that the dismissals of all of the claims of the plaintiffs are now before us. 14 15 II. Conversion of Motion To Dismiss to Motion for Summary Judgment 16 The district court's December 1, 2005, order dismissed 17 all the claims of the plaintiffs other than the one seeking to 18 pierce the corporate veil between Union Carbide and UCIL. 19 court did so after converting the defendants' motion to dismiss 20 under Federal Rule of Civil Procedure 12(b)(6) into a Rule 56 21 motion for summary judgment. 22 ("To the extent any part of Defendants' motion is a Rule 12(b)(6) 23 motion to dismiss, it is converted to a Rule 56 motion for 24 summary judgment.").1 1 The See Sahu I, 418 F. Supp. 2d at 411 Although we find it a close question, we The district court's statement as to this issue reads: A Court "shall" convert a motion to dismiss into one for summary judgment when "matters outside the pleadings are presented to and 16 1 agree with the plaintiffs that the district court provided 2 inadequate notice of conversion prior to granting the motion and 3 that its action was therefore in error -- or at least premature. 4 When a district court converts a motion to dismiss into 5 one for summary judgment, "[a]ll parties must be given a 6 reasonable opportunity to present all the material that is 7 pertinent to the motion." Fed. R. Civ. P. 12(d). Ordinarily, not excluded by the court," Fed. R. Civ. P. 12(c), and where the non-movant "should reasonably have recognized the possibility that such a conversion would occur." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (internal quotations omitted). Notice of conversion can be inferred from the circumstances. Kennedy v. Empire Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993). The moving party's submission of exhibits, affidavits, and the like gives the non-moving party notice of possible conversion. National Association of Pharmaceutical Manufacturers, Inc. v. Ayerst Laboratories, Division of/and American Home Products Corp., 850 F.2d 904, 911 (2d Cir. 1988); In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 1998); see also Morelli v. Cedel, 141 F.3d 39, 45 (2d Cir. 1998). In connection with Defendant's motion, both parties submitted matters outside the pleadings, which the Court considered, triggering mandatory conversion to summary judgment. Plaintiffs are on notice of a possible conversion as evidenced by the submission of extrinsic materials, and the fact that Plaintiffs' opposition to Defendants' motion is titled: "Memorandum of Law in Opposition to Motion to Dismiss and/or for Summary Judgment . . . ." Sahu I, 418 F. Supp. 2d at 410-11. 17 1 this means that a district court "must give notice to the parties 2 before converting a motion to dismiss pursuant to Rule 12(b)(6) 3 into one for summary judgment and considering matters outside the 4 pleading." 5 (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)) 6 (emphasis supplied). 7 principle that parties are entitled to a reasonable opportunity 8 to present material pertinent to a summary judgment motion." 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) Underlying the notice requirement is "the Id. Compliance with these requirements . . . . is not an end in itself. The district court's conversion of a Rule 12(b)(6) motion into one for summary judgment is governed by principles of substance rather than form. The essential inquiry is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings. Resolution of this issue will necessarily depend largely on the facts and circumstances of each case. 23 In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), 24 cert. denied, 475 U.S. 1015 (1986). 25 The district court did not explicitly notify the 26 parties before converting the Rule 12(b)(6) motion into a motion 27 for summary judgment. 28 because the plaintiffs were "on notice of a possible conversion": 29 "[B]oth parties submitted matters outside the pleadings" and the 30 plaintiffs entitled their opposition to the defendants' motion to 31 dismiss "Memorandum of Law in Opposition to Motion to Dismiss 32 and/or for Summary Judgment . . . ." 33 411. That was unnecessary, in the court's view, Sahu I, 418 F. Supp. 2d at In light of the particular complexities of this litigation, 18 1 we disagree with the district court's conclusion that the 2 plaintiffs received sufficient notice. 3 We have held that "[a] party cannot complain of lack of 4 a reasonable opportunity to present all material relevant to a 5 motion for summary judgment when both parties have filed 6 exhibits, affidavits, counter-affidavits, depositions, etc. in 7 support of and in opposition to a motion to dismiss." 8 Books, 770 F.2d at 295. 9 dismiss has submitted extrinsic material such as depositions or G. & A. "Even where only the party moving to 10 affidavits, the opposing party may be deemed to have had adequate 11 notice that the motion to dismiss would be converted." 12 Id. But the only arguably extrinsic submissions by the 13 plaintiffs were references in their complaint to, or quotations 14 from, documents that appear to have been, in large part, in the 15 record of the earlier Bano litigation. 16 are insufficient to incorporate documents or exhibits into the 17 complaint. 18 (concluding that "[l]imited quotation from or reference to 19 documents that may constitute relevant evidence in a case is not 20 enough to incorporate those documents, wholesale, into the 21 complaint" and that plaintiff's "paraphrasing of certain events 22 occurring during parts of the disciplinary hearing and his single 23 quotation of one excerpt" is insufficient to incorporate the 24 hearing transcripts into the complaint). 25 26 Such limited references See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) To be sure, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it 19 1 where the complaint relies heavily upon its terms and effect, 2 which renders the document integral to the complaint." 3 v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation 4 and internal quotation marks omitted) (concluding that referenced 5 contracts were "integral" to complaint that put at issue whether 6 those contracts authorized sale of certain artistic 7 performances). Chambers 8 But the contents of the documents referred to or quoted 9 in the complaint here do not appear to have been necessary to the 10 "short and plain statement of the claim showing that [the 11 plaintiffs were] entitled to relief," Fed. R. Civ. P. 8(a)(2), 12 see also, e.g., Boykin v. Keycorp, 521 F.3d 202, 213 (2d Cir. 13 2008), required in a complaint. 14 the plaintiffs largely for the purpose of indicating that 15 evidence existed to support the complaint's assertions. 16 of subsequent Supreme Court authority, we think this material is 17 best viewed as tending to establish that the complaint's factual 18 assertions are "plausible," see Bell Atl. Corp. v. Twombly, 127 19 S. Ct. 1955, 1966-67 (2007), and therefore sufficient to survive 20 a motion to dismiss under Rule 12(b)(6). 21 evidence incorporated into the complaint, and they were not meant 22 to counter a possible future motion for summary judgment brought 23 by the defendants under Rule 56. 24 the cited documents were "integral to the complaint."2 2 They seem to have been used by In light They are not extrinsic We therefore do not think that For these reasons, the district court could not have dismissed the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6); conversion to summary 20 1 But even if the full contents of these documents had 2 been contained in the complaint, or if they had properly been 3 treated as though they had been, we have difficulty understanding 4 why the plaintiffs were not entitled to further notice prior to 5 the court turning the motion to dismiss into a motion for summary 6 judgment. 7 simultaneously by the district court on what had appeared (other 8 than on the veil-piercing issue) to be, until their submission in 9 August 2005, a motion to dismiss for failure to state a claim. The parties' memoranda and exhibits were considered 10 See Docket Entries 9-15, Sahu v. Union Carbide Corp., No. 04 Civ. 11 8825(JFK) (S.D.N.Y. filed Aug. 5, 2005 and Aug. 9, 2005). 12 Following these submissions and prior to the issuance of the 13 district court's December 1, 2005, order converting the 14 defendants' motion and granting summary judgment, the court held 15 no hearings or oral argument; it entertained no additional 16 motions. 17 the allegations contained in the complaint to one for summary 18 judgment based on the documentary evidence supplied by the 19 defendants -- including the Sharma Affidavit and its ninety-seven 20 exhibits from the earlier Bano litigation. 21 simultaneously granted the converted motion. 22 Instead, it converted the Rule 12(b)(6) motion based on The court While the defendants' submissions -- including the 23 defendants' memorandum of law in support of their motion to 24 dismiss, which discussed much of this evidence at length -- gave judgment was necessary. Indeed, the defendants do not argue that the district court could have dismissed the plaintiffs' claims without considering the documents referenced by the complaint. 21 1 the plaintiffs notice that the defendants wanted the motion 2 changed to one for summary judgment, and gave the district court 3 the opportunity to consider the extrinsic evidence they submitted 4 before ruling, the plaintiffs could not have known whether the 5 court would in fact consider them, or would convert the motion 6 into one for summary judgment in order to do so. 7 submissions do not seem to us to be the equivalent of a motion to 8 convert, or to supply notice thereof. 9 of law in opposition to the defendants' motion to dismiss argued 10 that the court was not required to consider matters outside the 11 pleadings. 12 discovery if the court deemed it necessary to consider extrinsic 13 material. 14 sum, unclear, prior its issuance of the December 1, 2005, order, 15 whether the district court would accept the defendants' 16 invitation to consider the extrinsic evidence and then turn the 17 motion into one for summary judgment. 18 argued in part that the court did not need not do so in order to 19 rule in their favor on the non-veil-piercing claims. 20 These The plaintiffs' memorandum They requested the opportunity to seek further See Memorandum in Opposition 2-5 & n.3. It was, in Indeed, the defendants had We think that the title of the defendants' memorandum 21 in support of its motion as a motion to dismiss or for summary 22 judgment similarly failed to provide the plaintiffs with adequate 23 notice. 24 or not stated as alternatively for dismissal, ordinarily will 25 place a plaintiff on notice that the district court is being 26 asked to look beyond the pleadings to the evidence in order to A motion called a motion for summary judgment, whether 22 1 decide the motion. 2 had filed a multi-count complaint and the supporting memoranda 3 and evidence can fairly be read to seek only dismissal under Rule 4 12(b)(6) on some counts and summary judgment on others, the 5 motion papers provided insufficient notice. 6 should have been made aware that all counts could or would be 7 decided under the summary judgment standard in order to give them 8 the opportunity to oppose the motion with evidence and a focused 9 argument. 10 In this case, however, where the plaintiffs The plaintiffs The absence of any additional proceedings related to 11 the defendants' motion prior to the district court's December 1, 12 2005, order distinguishes this case from our decision in G. & A. 13 Books, relied upon by the defendants. 14 converted a motion to dismiss into a motion for summary judgment 15 only after a hearing at which the non-moving plaintiffs had 16 commented on extrinsic evidence provided by both them and the 17 defendants, and only after the plaintiffs had requested and 18 received an extension of time to submit additional materials. 19 See G. & A. Books, 770 F.2d at 295; see also Condon v. Local 20 2944, United Steelworkers, 683 F.2d 590, 593-94 (1st Cir. 1982) 21 (upholding the district court's decision to resolve a motion to 22 dismiss by considering it as a motion for summary judgment where 23 the plaintiff had been given "ample opportunity to provide the 24 court with any relevant information outside the pleadings to 25 raise a genuine factual issue, which he expressly represented 26 that he was prepared to do"). 23 There, the district court 1 As we emphasized in First Financial Insurance Co. v. 2 Allstate Interior Demolition Corp., 193 F.3d 109 (2d Cir. 1999), 3 4 5 6 7 8 9 10 "care should, of course, be taken by the district court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law." 11 Id. at 115 (quoting Ramsey v. Coughlin, 94 F.3d 71, 73-74 (2d 12 Cir. 1996)). 13 evidence to decide a motion for summary judgment rather than 14 limit itself to the pleadings as it would on a motion to dismiss, 15 we think that the plaintiffs should have been given "a reasonable 16 opportunity to meet facts outside the pleadings." 17 770 F.2d at 295. 18 Once the court decided to consider extrinsic As noted, we view this as a close case. G. & A. Books, But we think 19 there is a reasonable likelihood that, in light of the peculiarly 20 difficult procedural history of this and related litigation, the 21 plaintiffs were not aware that they were in danger of an adverse 22 grant of summary judgment based on the submissions prior to the 23 district court's order converting the motion and then deciding 24 it. 25 consequently it is appropriate to remand for what would appear to 26 be relatively limited further proceedings in connection with 27 consideration of summary judgment. 28 We conclude that further notice was required and that For the foregoing reasons, the district court's 29 judgment, insofar as it is based on the December 1, 2005, grant 30 of summary judgment in favor of the defendants on all non-veil24 1 piercing claims, will be vacated and the cause remanded for 2 further proceedings. 3 veil-piercing claim relies, in part, on its dismissal of the non- 4 veila-piercing claims, we must vacate the judgment, and remand 5 the cause, in their entirety. 6 *9, 2006 U.S. Dist. LEXIS 84475, at *27 (S.D.N.Y. Nov. 21, 2006) 7 ("The evidence on the record contradicts such allegations [that 8 Union Carbide dominated UCIL for the purpose of avoiding its 9 obligations to the plaintiffs]. And because the court's dismissal of the See Sahu III, 2006 WL 3377577, at The Court discussed this 10 evidence in detail in its previous decision under the umbrella of 11 plaintiffs' other two theories of liability."). CONCLUSION 12 13 For the foregoing reasons, the judgment of the district 14 court is vacated and the cause remanded to the district court for 15 further proceedings. 25

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