Davis v. Howard’s Empirical Analysis

Citation profile

29 federal appellate · 16 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 75 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “This does not appear in the instant case, although the district judge may have verbally advised counsel to this effect, all of which is not revealed in the record. "`Today we hold that where matters outside the pleadings are considered in disposition of a Rule 12(b)(6) motion, so as to automatically convert it to one for summary judgment pursuant to Rule 56, or as one made sua sponte , the Rule 56 strictures of notice, hearing and admissibility into evidence are strictly required. As Judge Goldberg aptly observed of the notice requirement in Soley v. Star Herald Co ., 390 F.2d 364 , 369-70 (5[th] Cir. 1968): "They [the litigants] cannot read over the judge's shoulder, or penetrate his memory. Nor can we. From Shakespeare's Hamlet to Albee's Tiny Alice, soliloquies and asides have been shared with the audience." Where there is a motion to dismiss for failure to state a claim upon which relief may be granted, there can never be a wide overview by the trial court, beyond the pleadings to include matters outside, without affording all litigants the opportunity to offer their perspectives on the additional matter by way of admissible evidence. "`The bridling devices at issue here sustain and insure the most elementary operation of our civil law. The concepts of notice, admissibility, and opportunity to be heard are ancient primaries. Independent from these notions in advocacy, there is the trial court's duty to insure that its basis for judgment is without error. This duty of the ”

   16 later decisions quote this exact passage · from the majority
   e.g. International Ass'n of Machinists & Aerospace Workers, Seminole Lodge 791 v. United Technologies Corp., Pratt & Whitney Aircraft Group, Government Products Division · Thoen v. United States

2. “"* * * If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."”

   4 later decisions quote this exact passage · from the majority
   e.g. International Ass'n of Machinists & Aerospace Workers, Seminole Lodge 791 v. United Technologies Corp., Pratt & Whitney Aircraft Group, Government Products Division · Newman Oil Co. v. Atlantic Richfield Co.

3. “"It is clear from the above quoted portions of Rule 12 and 56 that: if a motion *Page 702 under Rule 12(b)(6) is converted into a motion for summary judgment, both parties shall be given a reasonable opportunity to submit affidavits and other extraneous proofs to avoid a party being taken by surprise through conversion of the motion to dismiss to one for summary judgment. [Citations omitted.] It is also clear that the spirit of Rule 56 requires the same notice and hearing where the court contemplates summary judgment on its own initiative as it does when a party moves for summary judgment; i.e., ten days' notice. [Citations omitted.]"”

   1 later decision quote this exact passage · from the majority
   e.g. 527 So. 2d 698 - Hightower and Co., Inc. v. US Fidelity and Guaranty Co.