United States Court of Appeals

For the First Circuit

No. 03-1740

NATHAN P., ROBERT POMERLEAU, 

and ELIZABETH POMERLEAU,

Plaintiffs, Appellants,

v.

WEST SPRINGFIELD PUBLIC SCHOOLS 

and THE TOWN OF WEST SPRINGFIELD,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez, Circuit Judge,

Coffin, Senior Circuit Judge,

and Barbadoro,* District Judge.

Derek M. Beaulieu for appellants.

Regina Williams Tate, with whom Kimberly A. Mucha and Murphy,

Hesse, Toomey, and Lehane were on brief for appellees.

April 2, 2004

_____________________

*Of the District of New Hampshire, sitting by designation.
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LIPEZ, Circuit Judge. Nathan P. and his parents,

Elizabeth and Robert Pomerleau, appeal from the judgment of the

district court dismissing their suit for attorney's fees and costs

under the Individuals with Disabilities Education Act ("IDEA"), 20

U.S.C. § 1400 et seq., for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6). Having failed to oppose the defendants'

motions to dismiss or file any post-judgment motion seeking

reconsideration of the district court's decision, the Pomerleaus

now challenge on the merits the district court's dismissal of their

case. Adhering to our well-established rule that legal issues not

presented before the district court may not be advanced for the

first time on appeal, we affirm the decision of the district court.

I.

Nathan P. is a student with disabilities within the

meaning of the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. § 1400 et seq. In May 2001, West Springfield

Public Schools developed an individualized education plan ("IEP")

for Nathan P. Nathan's parents, Elizabeth and Robert Pomerleau,

rejected that IEP and notified the school district that they were

enrolling Nathan P. at the Curtis Blake Day School. On August 2,

2001, the Pomerleaus requested a hearing before the Bureau of

Special Education Appeals ("BSEA"), seeking a declaratory judgment

that the Curtis Blake Day School was the appropriate placement for

Nathan P. and reimbursement for the cost of Nathan's tuition at

that school for 2001-2002.
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A BSEA hearing officer conducted a hearing on April 11,

and May 22, 24, and 29 of 2002. On August 15, 2002, the BSEA

issued a decision in favor of the Pomerleaus. The defendants did

not appeal that decision. On February 10, 2003, the Pomerleaus

filed a claim in the United States District Court for the District

of Massachusetts for attorney's fees and costs pursuant to the fee

shifting provision of the IDEA. 

On March 12, 2003, West Springfield Public Schools filed

a motion to dismiss for failure to state a claim under Fed. R. Civ.

P. 12(b)(6). The Town of West Springfield concurred and joined the

motion on April 8, 2003, when it filed its motion to dismiss. The

defendants alleged that the plaintiffs' IDEA claim for attorney's

fees was analogous to an appeal of an administrative decision and

therefore was time barred by the 30-day statute of limitations that

governs such appeals under Massachusetts law. The defendants

further argued that the plaintiffs' claims were precluded because

they were based on the decision of a BSEA hearing officer, which

was not a judicially sanctioned change as required by the feeshifting statute. Finally, they urged the district court to

dismiss the plaintiffs' claim for expert witness fees, arguing that

the IDEA did not authorize courts to make such awards. The

Pomerleaus never responded to or opposed the defendants' motions to

dismiss.

The district court granted West Springfield Public

Schools' motion to dismiss on May 1, 2003, noting that "[w]hile the
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law in this area is not crystal clear, defendant's arguments are

colorable, and no opposition has been filed." On May 7, 2003, the

district court granted the Town of West Springfield's motion to

dismiss "based on the lack of opposition and the force of the

defendant's arguments." The court ordered judgment of dismissal in

favor of both of the defendants on May 7, 2003. Without filing a

post-judgment motion seeking reconsideration of the judgment in the

district court, the Pomerleaus filed this appeal.

II.

We have some concerns about the brief dismissal orders of

the district court because we are unable to determine the precise

grounds for dismissal. Although the court referred generally to

the "force" and "colorable" nature of the defendants' arguments, it

did not analyze these arguments or explain the basis for its

conclusion that the Pomerleaus had failed to state a claim upon

which relief could be granted. It noted in the first order that

"no opposition has been filed" and in the second that dismissal was

"based on the lack of opposition" as well as the strength of the

defendant's arguments. Under these circumstances, it appears that

the dismissals were, to an uncertain extent, a sanction for the

plaintiffs' failure to file an opposition.

A district court may grant a 12(b)(6) motion to dismiss

for failure to state a claim upon which relief can be granted only

if "it clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory." Correa-Martinez v.
1While a district court retains discretion to dismiss a

plaintiff's action under Fed. R. Civ. P. 41(b) for failure to

prosecute, lack of response to a motion to dismiss does not,

without more, justify this severe sanction. See Pomales v.

Celulares Telefonica, Inc., 342 F.3d 44, 48 (1st Cir. 2003).

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Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). When deciding

a 12(b)(6) motion, "the mere fact that a motion to dismiss is

unopposed does not relieve the district court of the obligation to

examine the complaint itself to see whether it is formally

sufficient to state a claim." Vega-Encarnacion v. Babilonia, 344

F.3d 37, 41 (1st Cir. 2003). This obligation means that a court

may not automatically treat a failure to respond to a 12(b)(6)

motion as a procedural default. See Pinto v. Universidad de Puerto

Rico, 895 F.2d 18, 19 & n.1 (1st Cir. 1990) (rejecting defendants'

argument that "a court may, without notice, take a failure to

respond to a motion to dismiss as a default, warranting dismissal

irrespective of substantive merit"); see also Issa v. Comp USA, 354

F.3d 1174, 1177 (10th Cir. 2003); McCall v. Pataki, 232 F.3d 321,

323 (2d Cir. 2000).1 

On the other hand, we have held that "it is within the

district court's discretion to dismiss an action based on a party's

unexcused failure to respond to a dispositive motion when such

response is required by local rule, at least when the response does

not clearly offend equity." NEPSK, Inc. v. Town of Houlton, 283

F.3d 1, 7 (1st Cir. 2002); see Pinto, 895 F.2d at 19 & n.1 (noting

that a court may treat the failure to respond to a motion to
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dismiss as a procedural default "where a court had ordered a

memorandum, and of course, cases where a response was required by

rule") (citations omitted). Where a local rule expressly requires

a response to a motion, the non-moving party is placed on notice

that failure to respond could result in a procedural default. See

Pinto, 895 F.2d at 19 & n.1. In such cases, the local rule

provides the basis for dismissal rather than Fed. R. Civ. P.

12(b)(6), which does not on its own terms require a response to a

motion to dismiss. Where a district court grants an unopposed

motion to dismiss pursuant to a local rule that requires a

response, we will uphold the sanction provided that it does not

offend equity or conflict with a federal rule. See NEPSK, 283 F.3d

at 7.

In this case, however, we are unsure whether the district

court relied on a local rule in dismissing the Pomerleaus'

complaint, as it did not refer to such a rule in its order. In

addition, it is not clear whether the Local Rules for the District

of Massachusetts require a non-moving party to respond to a motion

to dismiss. Our caselaw points in different directions on this

question. See Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d

446, 451 (1st Cir. 1992) (finding that the District of

Massachusetts local rules do not require a response to a

dispositive motion); but see Corey v. Mast Rd. Grain & Bldg.

Materials Co., 738 F.2d 11, 12 (1st Cir. 1984) (holding that the

local rules do require a response).
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Despite our concerns with the district court's orders, we

need not decide whether the district court acted appropriately in

dismissing the plaintiffs' complaint because the plaintiffs failed

to raise below the issues that they now argue on appeal. "If any

principle is settled in this circuit, it is that, absent the most

extraordinary circumstances, legal theories not raised squarely in

the lower court cannot be broached for the first time on appeal."

Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59

v. Superline Transp. Co. et al., 953 F.2d 17, 21 (1st Cir. 1992);

see Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989) ("[I]t is

a party's first obligation to seek any relief that might fairly

have been thought available in the district court before seeking it

on appeal."). The circumstances in this case were hardly

extraordinary. The defendants each filed a motion to dismiss, and

the district court considered and granted these motions, yet the

Pomerleaus neither opposed the motions nor sought reconsideration

of the district court's judgment pursuant to Fed. R. Civ. P. 59(e)

or 60(b).

If a response to a motion to dismiss is not required by

a local rule, yet the court wrongly grants the motion to dismiss

because of the plaintiff's procedural default, a plaintiff who has

suffered an improper dismissal order may challenge the court's

procedural error by filing a motion to alter or amend the judgment

under Fed. R. Civ. P. 59(e). Given our clearly stated law that the

district court has an obligation to examine the complaint itself to
2Of course, Rule 59(e) "does not provide a vehicle for a party

to undo its own procedural failures" or to "advance arguments that

could and should have been presented to the district court prior to

judgment." See Dimarco-Zappa v. Cabanillas, 328 F.3d 25, 34 (1st

Cir. 2001). That a district court may not, without notice, dismiss

the plaintiff's complaint as a sanction for the failure to file an

opposition does not mean that the non-responding plaintiff is

relieved of his or her duty "to incorporate all relevant arguments

in the papers that directly address a pending motion." CMM Cable

Rep., Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st

Cir. 1994). Thus, a plaintiff who fails to raise any substantive

legal arguments prior to the dismissal of his or her complaint is

appropriately limited under Rule 59(e) to challenging the court's

decision as a manifest error of law. See FDIC v. World Univ. Inc.,

978 F.2d 10, 16 (1st Cir. 1992) ("Motions under Rule 59(e) must

either clearly establish a manifest error of law or must present

newly discovered evidence."). 

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determine the legal sufficiency, such a procedural default ruling

would be a manifest error of law. If the district court considers

the merits of the unopposed motion to dismiss as it should and errs

in its analysis, the plaintiff may also raise a claim of error

through a Rule 59(e) motion.2 Where a response is required by a

local rule, a plaintiff may still file a timely motion to set aside

the judgment pursuant to Fed. R. Civ. P. 60(b), on the ground that

its earlier default was due to excusable neglect. See, e.g.,

United States v. Sea Scallops, 857 F.2d 46, 48-49 (1st Cir. 1988).

Thus, a party who fails to object to a motion to dismiss must raise

any claims of error by filing the appropriate post-judgment motion,

or forfeit his or her right to raise those claims before this

court. See Rocofort v. IBM Corp., 334 F.3d 115, 122 (1st Cir.

2002); MCI Telecomms. Corp. v. Matrix Communs. Corp., 135 F.3d 27,
3In addition, the plaintiffs have not argued before us that

the district court improperly dismissed their complaint as a

sanction for failure to oppose, raising only the substantive issues

presented by the defendants' motions to dismiss. Therefore, even

if this procedural issue had not been forfeited by the plaintiffs'

failure to raise it in the district court, we would be inclined to

consider it waived by their failure to raise it on appeal. See

King v. Town of Hanover, 116 F.3d 965, 970 (1st Cir. 1997).

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33 (1st Cir. 1998). To hold otherwise would undermine the ability

of the district courts to serve as an effective and efficient forum

for the resolution of disputes.

Therefore, because the Pomerleaus failed to raise any

arguments before the district court either in an opposition to the

defendants' 12(b)(6) motions or by filing a timely, post-judgment

motion, they are foreclosed from advancing their arguments on

appeal.3 Consequently, the decision of the district court

dismissing the plaintiffs' complaint is affirmed.

So ordered.