This defamation suit involves a gun-control editorial published by the NY Times, which argued that a “link to political incitement was clear” between an ad circulated by Sarah Palin’s PAC depicting a map of congressional districts with a crosshair over certain ‘targeted’ districts, and the shooting of Congresswoman Gabby Giffords’, whose district had been depicted. No link between the ad and the shooting has been demonstrated.

Palin sued for defamation. The Times moved to dismiss under 12b6. The district court held an evidentiary hearing, in which the sole witness was the author of the editorial, for the purpose of gauging the plausibility of the allegation that the Times acted with actual malice (which element would be necessary for a defamation claim, as Palin is a public figure). The disctrict court dismissed the complaint.

The district court did not convert the 12b6 motion into one for summary judgment, pursuant to Rule 56. However it did appear to rely on the hearing in denying the 12b6. Thus, it improperly relied on evidence outside the complaint. Denial of the cause reversed.

As the Second Circuit noted, Rule 12(d) provides the district court with a choice between Rules 12b6 and 56. There is no middle ground (although I think there should be – which is a discussion for another day). Key holding here:

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