In an opinion today, the Second Circuit revived Sarah Palin’s suit accusing The New York Times of defaming her in an editorial suggesting that her political action committee’s use of “stylized cross hairs” over the districts of several members of Congress in online materials was responsible for the “political incitement” of Jared Lee Loughner, who killed six people and wounded many others (including Representative Gabby Giffords) in a 2011 mass shooting (see our prior coverage here).

The Second Circuit took issue with Judge Rakoff relying on evidence from an evidentiary hearing — the testimony from Times editor James Bennet — to dismiss the case under Rule 12.  As the Second Circuit held, Rule 12(d) allows District Courts to either rule based on the pleadings alone, or to convert the motion to dismiss into a motion for summary judgment (with an opportunity to introduce more evidence):

The district judge took neither permissible route under Rule 12(d). The judge both relied on matters outside the pleadings to decide the motion to dismiss and did not convert the motion into one for summary judgment. To the contrary, his aim was explicit: to determine whether Palin’s complaint stated a plausible claim for relief under Rule 12(b)(6). The district judge explained that “[b]y requiring district courts to make plausibility determinations based on the pleadings, the Supreme Court has, in effect, made district courts gatekeepers.”

. . . .

It is clear to us that the district court viewed the hearing as a way to more expeditiously decide whether Palin had a viable way to establish actual malice. But, despite the flexibility that is accorded district courts to streamline proceedings and manage their calendars, district courts are not free to bypass rules of procedure that are carefully calibrated to ensure fair process to both sides. The procedural path followed by the district court conforms to neither of the two options permitted by Rule 12(d).