New Jersey Court Rule 4:6-2(e) provides that a defendant can file a motion to dismiss for “failure to state a claim upon which relief can be granted[.]”  The Rule further provides that “[i]f, on a motion to dismiss based on the defense numbered (e), 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 by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.”  Trial courts employ different standards of review when evaluating motions to dismiss and summary judgment motions.  The motion to dismiss for failure to state a claim standard is more lenient and less likely to lead to the dismissal of a complaint than the summary judgment standard.  In Raverta v. Lake Mohawk Golf Club, No. A-2682-09 (App. Div. July 29, 2011), the trial court granted the defendants’ Rule 4:6-2(e) motion to dismiss.  The Appellate Division reversed because the defendants presented evidence beyond the pleadings in support of its motion and the trial court utilized the motion to dismiss test instead of the summary judgment standard. 

Because the facts are not important to the Appellate Division’s ruling, it is sufficient to note that the plaintiff filed a seven-count amended complaint against the defendants relating to his involvement with and membership in the defendant golf club in October 2009.  Defendants filed a motion to dismiss pursuant to Rule 4:6-2(e), in which they submitted a certification from the club’s general manager.  Attached to the certification was various other documents, including the plaintiff’s resume and the club’s bylaws and rules, regulations, and policies.  In their notice of motion, the defendants only referenced Rule 4:6-2(e) and Rule 1:6-2 (which outlines requirements for motions).  Defendants did not submit a separate statement of undisputed material facts, which is a requirement for summary judgment motions pursuant to Rule 4:46-2.  Apparently, the plaintiff did not file any certifications in opposition to the defendants’ motion.

The trial court conducted oral argument on the motion and granted it by written order.  The order was accompanied by a written statement of reasons that included fact-findings that were based on the documents presented to the court.  In dismissing the plaintiff’s amended complaint in its entirety, the court did not discuss Rule 4:46-2 or the governing precedent for disposition of summary judgment motions.

The Appellate Division initially noted that because the defendants presented materials outside the pleadings, the trial court should have evaluated the motion under the summary judgment rule rather than the motion to dismiss rule.  After pointing out the differences between the tests employed in considering those different types of motions, the Appellate Division observed that the “[p]laintiff really had no notice that the motion he was opposing was anything more than a motion subject to the [motion to dismiss] standard … [under which] motions to dismiss ‘should be granted in only the rarest of instances.’”

The Appellate Division pointed out that “the record before us does not disclose whether defendants complied with Rule 4:46 in presenting their motion to the judge because the motion briefs are not to be included in the record on appeal.  We infer that they did not do so because the motion was decided under the [motion to dismiss] standard rather than the [summary judgment] standard.  In any event, we do not have before us the statement of material facts required by Rule 4:46-2(a), which alone may be a ground for denying a summary judgment motion.”  In reversing and remanding, the Appellate Division concluded that “[w]e do not reach the issue of whether any of the causes of action asserted in the complaint state a claim for relief without considering the [defendants’ supporting] documents because the judge considered them and made fact-findings based on them in deciding the motion, but applied the wrong standard.  …  Defendants may pursue dismissal of the complaint either under Rule 4:6-2(e) without submitting any matters outside the pleading or they may seek a summary judgment and comply with all of the requirements of Rule 4:46 and the cases construing it.”