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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 25-CV-0060
ALEXANDER GALLO, APPELLANT,
V.
BRIAN SCHWALB, et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(2024-CAB-007842)
(Donald W. Tunnage, Judge)
(Submitted June 4, 2026 Decided September 10, 2026)
Alexander Gallo, pro se.
Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Jeremy R. Girton, Assistant Attorney General were on the brief for appellees Brian Schwalb and the District of Columbia.
Abid R. Qureshi, Parag Dharmavarapu, and Mobeen Chaudhry were on the brief for appellee Latham & Watkins LLP.
Before BECKWITH, EASTERLY, and SHANKER, Associate Judges.
SHANKER, Associate Judge: Appellant Alexander Gallo, acting pro se, sued
appellees Latham & Watkins LLP, the District of Columbia, and D.C. Attorney
2
General Brian Schwalb in Superior Court, alleging that they committed certain
litigation misconduct in a prior case. Mr. Gallo also moved for a preliminary
injunction. After the preliminary injunction motion was fully briefed, the Superior
Court, unprompted and without holding a hearing or otherwise considering Mr.
Gallo’s position, dismissed without prejudice Mr. Gallo’s complaint for failure to
state a claim in a brief order that included no explanation of how Mr. Gallo’s
complaint was deficient. We reverse, and we take this opportunity to emphasize the
importance of a basic precept of procedural fairness: a trial court cannot sua sponte
dismiss a plaintiff’s complaint under Superior Court Rule of Civil
Procedure 12(b)(6) without providing the plaintiff notice and an opportunity to
respond.
I. Background
In May 2020, during the first wave of the COVID-19 pandemic, Mr. Gallo
sought to evict Andre Hopkins, a “foreclosed homeowner” who refused to leave a
property that Mr. Gallo had purchased. See Gallo v. District of Columbia, No. 1:21-cv-03298, 2023 WL 7552703, at *1 (D.D.C. Nov. 14, 2023). Because of an eviction
moratorium imposed in response to the pandemic, however, Mr. Gallo was unable
to do so. See id. at *2. Mr. Gallo filed a lawsuit against the District in Superior Court
asserting claims under the Fifth Amendment’s Takings Clause, the Constitution’s
3
Contract Clause, and D.C.’s writ of waste statute, D.C. Code § 42-1601. See id. at
*2-*4.
The case was removed to federal court and the United States District Court
for the District of Columbia granted the District’s motion to dismiss. Id. at *7. On
appeal, the United States Court of Appeals for the District of Columbia Circuit
appointed Latham as amicus curiae “to present arguments in support of [Mr.] Gallo’s
position that amicus deemed potentially meritorious.” Gallo v. District of Columbia,
No. 23-7158, 2025 WL 1446283, at *2 (D.C. Cir. May 20, 2025). Latham “agree[d]
with the District that [Mr.] Gallo ha[d] failed to state a claim under the Contracts
Clause and ha[d] not stated a Takings Clause claim [as to Mr. Hopkins],” but it
argued that Mr. Gallo had “allege[d] sufficient facts to state a takings claim as to
tenants other than [Mr.] Hopkins.” Id. The D.C. Circuit affirmed the dismissal of all
of Mr. Gallo’s claims, id. at *7, and that judgment is now final, see Gallo v. District
of Columbia, 146 S. Ct. 302 (2025) (denying certiorari).
Mr. Gallo’s current lawsuit arose from his previous one. In December 2024—
after the dismissal of his complaint at the trial level but before the D.C. Circuit
affirmed that decision—he sued Latham, the District of Columbia, and Attorney
General Schwalb for “injunctive relief and damages” based on alleged “vexatious
4
litigation tactics” and “misrepresentation[s]” in the first case, including allegedly
“fraud[ulent]” filings. 1 He requested the following relief:
1[.] Order the Attorney General and Latham & Watkins to
remove the ejectment fraud from their briefs in federal
court and amend their pleadings[.]
2[.] Enjoin Defendants from stating in federal court that
Plaintiff “could have” evicted Andre Hopkins during the
Moratorium or that the ejectment statute is not actionable
in Landlord Tenant Branch[.] These repeated attempts to
induce federal courts to corruptly and collaterally overturn
state law to dodge a compensation clam should be
enjoined[.]
3[.] Order Defendants to stipulate in federal courts in all
cases concerning Andre Hopkins that his tenancy-at-will
was terminated on May 5, 2020[.] The matter is res
judicata[.]
4[.] Award Plaintiff damages for his time spent countering
these frauds, in an amount to be ascertained at an
evidentiary hearing, regardless of the outcome of the case
at law[.]
5[.] In the event defendants procure a judgment of the DC
Circuit tainted by ejectment fraud[,] declare here that it is
void as fraud and order Defendants to file a motion to
vacate it[.]
6[.] In the event Plaintiff’s claim at law for the value of
Andre Hopkins’[s] occupancy is lost due to the fraud
1
Because the District of Columbia and Mr. Schwalb, in his capacity as Attorney General, have acted together at every stage of the case, for the sake of brevity we refer to briefs filed by both the District of Columbia and Mr. Schwalb as being filed by “the District.”
5
herein described, award Plaintiff compensatory damages
for fraud (the value of the occupancy) in equity jointly and
severally against Defendants[.] . . .
7[.] Award pre judgment interest for all damages[.]
Mr. Gallo moved for a preliminary injunction on the same day he filed his
complaint. He asked for “relief items #1-3” in his complaint, which corresponded to
his requests that the defendants amend their pleadings and briefs in federal court and
that they be required to stipulate that Mr. Hopkins’s tenancy was terminated. In
opposing the motion, the District argued that none of the four factors courts consider
when deciding whether to grant a preliminary injunction weighed in Mr. Gallo’s
favor. Latham did not respond to Mr. Gallo’s motion.
The trial court denied the motion for a preliminary injunction and also sua
sponte dismissed Mr. Gallo’s complaint without prejudice under Superior Court
Civil Rule 12(b)(6). The court explained its decision as follows:
Pending before the Court is [Mr. Gallo’s motion for a
preliminary injunction]. Upon review of the Motion,
Plaintiff’s Complaint, [the District’s opposition brief],
[Mr. Gallo’s reply brief], and the entire record herein, the
Court concludes that the Complaint in its present form is
not sufficiently ple[d] pursuant to the requirements of
Super. Civ. Ct. R. 8(a) and Super. Civ. Ct. R. 12(b)(6).
Therefore, the Court sua sponte dismisses Plaintiff’s
Complaint for failure to state a claim upon which relief
may be granted. Because Plaintiff has failed to state a
claim upon which relief may granted, Plaintiff’s request
6
for injunctive relief cannot meet its burden of establishing
a substantial likelihood of success on the merits and,
accordingly, the Motion is denied.
Mr. Gallo timely appealed.
II. Analysis
Mr. Gallo, who is still proceeding pro se, challenges only the trial court’s
Rule 12(b)(6) ruling. He argues that the sua sponte dismissal of his complaint for
failure to state a claim is reversible error because the trial court failed to provide him
with notice of its intent to dismiss and an opportunity to respond. The District and
Latham argue that the dismissal was procedurally proper even if no party had moved
to dismiss the complaint under Rule 12(b)(6) because Mr. Gallo was put on notice
that such a dismissal was possible by the District’s argument, in its brief opposing a
preliminary injunction, that Mr. Gallo was not likely to succeed on the merits of his
claims. The appellees separately argue that we can affirm because Mr. Gallo’s claims
fail on their merits under the 12(b)(6) standard. 2
2
The District also argues that “[Mr.] Gallo’s principal request for relief—to enjoin the District and Latham from making certain arguments in the D.C. Circuit litigation—is now moot” because “[f]ollowing the D.C. Circuit’s resolution of the merits of [Mr.] Gallo’s appeal, there is nothing left to be enjoined.” “As a general rule, the mootness doctrine prevents courts from deciding cases when the issues
7
Normally, we review de novo the dismissal of a complaint for failure to state
a claim under Rule 12(b)(6), and we confine ourselves to the legal question whether
the allegations in the complaint plausibly state a claim for relief. Tingling-Clemmons
v. District of Columbia, 133 A.3d 241, 245 (D.C. 2016). But we do not reach that
legal question here, and we express no view on the legal sufficiency of Mr. Gallo’s
complaint. Instead, we focus on the trial court’s antecedent choice to consider, and
then dismiss, Mr. Gallo’s complaint under the 12(b)(6) standard sua sponte without
providing him with either notice of what it intended to do and why or an opportunity
to respond. Because we agree that the trial court erred by doing so, we reverse and
remand for further proceedings.
presented are no longer live or when the parties lack a legally cognizable interest in the outcome.” Re’ese Adbarat Debre Selam Kidest Mariam Ethiopian Orthodox Tewahedo Church, Inc. v. Habte, 300 A.3d 784, 794 (D.C. 2023) (citation modified). And “an appeal should be dismissed when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.” Id. (citation modified). That is not the case here. In addition to the injunctive relief identified by the District, Mr. Gallo’s complaint asks for “compensatory damages for fraud.” The District itself characterizes this request for damages as “non-moot relief,” and we likewise conclude that Mr. Gallo’s apparent fraud claim, at the very least, gives him “a concrete interest in the outcome of this litigation,” notwithstanding the status of his D.C. Circuit case. Id. at 795. Therefore, this appeal is not moot. See id. at 794-96.
8
A. Sua Sponte Dismissal Under Rule 12(b)(6) Without Notice and an
Opportunity to Respond Is Reversible Error.
The Superior Court Rules of Civil Procedure and our case law on the inherent
power of the Superior Court do not appear to authorize the sua sponte dismissal of a
complaint under Rule 12(b)(6) at all. But at the very least, it is reversible error for
the Superior Court to dismiss a complaint sua sponte without providing the plaintiff
with notice and an opportunity to respond. 3
To start, the Rules of Civil Procedure do not expressly empower the Superior
Court to dismiss a complaint for failure to state a claim sua sponte. See In re Paul,
292 A.3d 779, 784 (D.C. 2023) (explaining that we interpret court rules by looking
to the ordinary meaning of their text). The text of Rule 12 refers to “failure to state
a claim” as a “defense” that a “party may assert” by “motion”; it does not provide
that a court may probe the legal sufficiency of a complaint on its own. Super. Ct.
Civ. R. 12(b)(6). Rule 12(h)(2) bolsters this reading: it lists the circumstances under
3
Not every sua sponte dismissal is necessarily a sua sponte dismissal without prior notice and an opportunity to respond, because “sua sponte” simply means that the trial court initiated the process leading to the dismissal without “prompting or suggestion” by a party. Sua sponte, Black’s Law Dictionary (12th ed. 2024). As discussed below, we do not think that the Superior Court Civil Rules or our case law permit sua sponte consideration of dismissal for failure to state a claim. Nevertheless, the nature of the dismissal in this case—sua sponte and without notice and an opportunity to be heard—dictates our holding here.
9
which the “failure to state a claim” defense “may be raised,” and sua sponte court
action is not among them. See id. R. 12(h).
Comparing Rule 12(b)(6) to other rules that do authorize unprompted court
action puts this conclusion in even sharper relief. For example, Rule 12(f)(1)
provides that a court may “strike from a pleading” certain defenses or statements “on
its own.” Id. R. 12(f)(1). Rule 41 provides that “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order . . . the court may, on its own initiative,
enter an order dismissing the action or any claim.” Id. 41(b)(1). And Rule 56(f)
authorizes the Superior Court to grant summary judgment “independent of the
motion” if it “giv[es] notice and a reasonable time to respond.” Id. R. 56(f). Thus,
when the Civil Rules authorize sua sponte court action, they do so with express
language. Rule 12(b) does not contain any such language with respect to the defense
that a complaint “fails to state a claim on which relief can be granted.” Id.
R. 12(b)(6). Therefore, the Rules themselves do not authorize the sua sponte
dismissal of a complaint for failure to state a claim.
Nor does our precedent endorse such sua sponte action. We have
acknowledged that the Superior Court possesses certain unenumerated powers
flowing from its inherent authority as a trial court. See, e.g., Yeh v. Hnath, 294 A.3d
1081, 1089 (D.C. 2023). But even where we permit the exercise of this inherent
10
authority—to sanction parties for bad faith litigation conduct, for example—we have
urged that it “must be exercised with restraint and discretion” because of its
“potency.” Id. (quoting In re M.L.P., 936 A.2d 316, 323 (D.C. 2007)). For this
reason, our prior cases addressing sua sponte dismissals under Rule 12(b)(6) have
disapproved of the practice, and no case has explicitly sanctioned a sua sponte
dismissal for failure to state a claim.
In Dormu v. Gill, we reversed where the trial court sua sponte dismissed a pro
se plaintiff’s complaint during a pretrial conference “in the face of disputed
allegations” of fact. 277 A.2d 104, 106 (D.C. 1971). We stated in dicta that “[i]t may
be that where pre-trial admissions and pleadings show that no issue of fact remains
to be determined, the court has the power to decide the questions of law and enter
summary judgment thereon.” Id. (citation modified). But nowhere did we indicate
that sua sponte dismissal under Rule 12(b)(6) was appropriate. Next, in McBryde v.
Amoco Oil Co., we likewise reversed the sua sponte dismissal of a case during a
pretrial conference, cautioning that “a complaint should not be dismissed under
Rule 12(b)(6) because the court doubts that the plaintiff will prevail in the action.”
404 A.2d 200, 203 (D.C. 1979) (per curiam). In dicta about dicta, we stated that “[t]o
the extent that [Dormu] . . . suggests that a judge conducting a pretrial conference
11
may, [s]ua sponte, summarily dispose of a case, we believe that procedure should be
used very infrequently and with an abundance of caution.” Id.
Later, in Epps v. Vogel, we concluded that “the trial court abused its discretion
in dismissing the complaint sua sponte, on appellants’ own unanswered motion for
default, without inquiring whether appellants would seek leave to amend . . . or
stating reasons why dismissal, in any event, is appropriate.” 454 A.2d 320, 325 (D.C.
1982). Although in dicta we cited McBryde for the proposition that “[s]ua sponte
dismissal of a complaint should occur only infrequently and with an abundance of
caution,” id. at 325 n.9, we did not state that such dismissal is contemplated by the
Civil Rules; and, as noted, McBryde itself only noted that Dormu “suggest[ed]” in
“[d]icta” that “a judge conducting a pretrial conference may, [s]ua sponte,
summarily dispose of a case,” 404 A.2d at 203. Moreover, although in Epps we
agreed with the trial court that the complaint failed to state a claim, we nevertheless
reversed. See 454 A.2d at 324-25.
Rule 12 and our cases, then, cast significant doubt on a trial court’s authority
to sua sponte dismiss a complaint for failure to state a claim. Even to the extent a
trial court is permitted in some circumstances to sua sponte consider dismissal of a
complaint under Rule 12(b)(6), however, we hold that basic principles of procedural
12
fairness require notice to the plaintiff and an opportunity to respond before the court
can order dismissal.
In our adversary system, the parties “frame the issues for decision,” leaving
“to courts the role of neutral arbiter of matters the parties present.” United States v.
Sineneng-Smith, 590 U.S. 371, 375 (2020) (quoting Greenlaw v. United States, 554
U.S. 237, 243 (2008)). As a result, litigants reasonably do not expect a trial court to
stage a “takeover” of their case by resolving it on grounds the parties do not raise.
Id. at 379. In order to “ensure procedural fairness” in other contexts, therefore, we
have explained that a court should “provid[e] each party with the opportunity to brief
an issue viewed by the court as significant and potentially decisive” before ruling on
that matter. Randolph v. United States, 882 A.2d 210, 226-27 (D.C. 2005); see also
Tobin v. John Grotta Co., 886 A.2d 87, 91 (D.C. 2005) (explaining that the appellant
“was entitled to prior notice and an opportunity to oppose” before the trial court
could “exceed the requested relief and grant summary judgment” on all claims,
rather than just the one that was the subject of the motion); In re X.B., 637 A.2d
1144, 1148 (D.C. 1994) (“The purpose of any notice requirement is to provide
forewarning of an event” so that the “person who must respond [has] an adequate
opportunity to prepare and present his or her defense.” (citation modified)); Tazoe
v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (“To employ fair procedure,
13
a district court must generally provide the plaintiff with notice of its intent to dismiss
or an opportunity to respond.” (citation modified)). This prevents unfair surprise and
helps to ensure that courts adhere to their proper role in our adversary system. See
Sineneng-Smith, 590 U.S. at 378-79 (reversing where the court of appeals decided
the case on a basis it raised sua sponte and then asked amicus to develop further in
briefing); Margolin v. Nat. Ass’n of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026)
(reversing because the court of appeals “violated the party-presentation principle”
by addressing an argument that the parties did not brief “without giving either side
a chance to address its theory”); Clark v. Sweeney, 607 U.S. 7, 9-10 (2025) (reversing
because the court of appeals “transgressed the party-presentation principle by
granting relief on a claim that Sweeney never asserted and that the State never had
the chance to address”). Our holding that it is reversible error for the trial court to
dismiss sua sponte under Rule 12(b)(6) without providing the plaintiff with notice
and an opportunity to respond follows naturally from our explication of these
principles of procedural fairness and party presentation.
We also find support for this notice-and-opportunity requirement in decisions
by the federal courts of appeal. While the Supreme Court has declined to take a
position on the propriety of sua sponte dismissals under Federal Rule of Civil
Procedure 12(b)(6), see Neitzke v. Williams, 490 U.S. 319, 329 n.8 (1989), several
14
courts have discussed the basis for a notice and opportunity-to-respond requirement
with respect to sua sponte dismissals under Federal Rule 12(b)(6).
In Jefferson Fourteenth Associates v. Wometco de Puerto Rico, Inc., for
example, the Eleventh Circuit first concluded that the Federal Rules of Civil
Procedure do not authorize sua sponte dismissals for failure to state a claim and then
explained that “courts exercise their inherent power to dismiss a suit that lacks merit
only when the party who brought the case has been given notice and an opportunity
to respond.” 695 F.2d 524, 526 (11th Cir. 1983). In Ricketts v. Midwest Nat’l Bank,
the Seventh Circuit established a similar general rule: “if the court concludes that
the complaint should be dismissed sua sponte for failure to state a claim, the parties
must be given both notice of the court’s intention and an opportunity to respond.”
874 F.2d 1177, 1185 (7th Cir. 1989). The court justified these procedural safeguards
on three grounds: (1) sua sponte dismissals “may often conflict with the traditional
adversarial precepts of our system of justice” and undermine the perception of
judicial neutrality; (2) sua sponte dismissals may unfairly “prejudice plaintiffs by
depriving them of an opportunity to amend their complaint or to argue against
dismissal”; and (3) such dismissals “often lead to judicial inefficiency” because
premature dismissals are more likely to result in the “wasteful shuttling” of
15
complaints back and forth between the trial and appellate levels. Id. at 1184-85
(citation modified). We agree with each point.
The Second, Fifth, and Sixth Circuits have applied similar procedural
safeguards, for similar reasons. See Thomas v. Scully, 943 F.2d 259, 260 (2d Cir.
1991) (“Though the district court has the power to dismiss a complaint sua sponte
for failure to state a claim on which relief can be granted, it may not properly do so
without giving the plaintiff an opportunity to be heard.”); Miller v. Sam Houston
State Univ., 986 F.3d 880, 889-90 (5th Cir. 2021) (concluding that the district court
did not employ a fair procedure when dismissing some of the plaintiff’s claims sua
sponte where it was “debatable” whether the plaintiff received proper notice and
where “the district court failed to give Miller an adequate opportunity to respond to
the court’s intention to dismiss her claims”); Tingler v. Marshall, 716 F.2d 1109,
1112 (6th Cir. 1983) (exercising the court’s “supervisory authority” to hold that a
district court may dismiss a complaint for failure to state a claim sua sponte only if
five requirements are met, one of which is providing the plaintiff with notice and an
opportunity to respond). 4 Thus, the federal courts’ understanding of procedural
4
We acknowledge federal cases that have affirmed the sua sponte dismissal of a complaint under the federal Rule 12(b)(6) where the district court did not provide notice and an opportunity to respond but where it was “patently obvious”
16
fairness, party presentation, judicial restraint, and judicial economy also supports
our conclusion that it is reversible error for the Superior Court to dismiss a complaint
under Rule 12(b)(6) sua sponte where it does not provide the plaintiff with notice of
its intent and an opportunity to respond.
B. The Superior Court Failed to Provide Mr. Gallo With
Notice and an Opportunity to Respond.
The trial court failed to provide Mr. Gallo with notice of its intent to sua sponte
dismiss under Rule 12(b)(6) and likewise failed to provide him with an opportunity
to respond. No action of the court or the parties could have informed Mr. Gallo that
that the plaintiff could not prevail. See, e.g., Baker v. Director, U.S. Parole Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990) (following the approach of the Ninth Circuit but noting that “certain other circuits enforce a strict notice requirement with regard to sua sponte dismissals pursuant to Rule 12(b)(6) and mandate reversal for noncompliance with procedural steps dictated by the court”); cf. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“Where a complaint fails to state a claim, and no amendment could cure the defect, a dismissal sua sponte may be appropriate.”). We decline to adopt such an approach. While we appreciate the “pragmatic” concerns expressed in Baker and elsewhere, 916 F.2d at 726, for the reasons explained above, we do not agree that bedrock principles of party presentation and procedural fairness should yield to judicial economy in this instance. Moreover, as Ricketts pointed out, it is not at all clear that a rule allowing sua sponte dismissals for failure to state a claim without the provision of notice and opportunity to respond is a more efficient use of judicial resources than our clear rule. See 874 F.2d at 1185.
17
his complaint was at risk of dismissal (or why), and, as a result, Mr. Gallo was
deprived of a chance to address that risk.
Mr. Gallo’s own motion for a preliminary injunction did not put him on notice
that dismissal was possible because the preliminary injunction framework and the
12(b)(6) framework concern requests for different types of court action, rely on
different sources of information, and employ different legal analyses. “[A] trial court
must consider four criteria” when determining whether to grant a motion for a
preliminary injunction: (1) whether there is a “substantial likelihood [the plaintiff]
will prevail on the merits”; (2) whether the plaintiff “is in danger of suffering
irreparable harm during the pendency of the action”; (3) whether “more harm will
result to [the plaintiff] from the denial of the injunction than will result to the
defendant from its grant”; and, “in appropriate cases”; (4) whether “the public
interest will not be disserved by the issuance of the requested order.” Feaster v.
Vance, 832 A.2d 1277, 1287-88 (D.C. 2003) (quoting District of Columbia v. Grp.
Ins. Admin., 633 A.2d 2, 21 (D.C. 1993)). In this “multi-factor test[,] . . . a stronger
showing on some factors can compensate for a weaker showing on others.”
Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1234 (D.C. 2016).
By contrast, the 12(b)(6) analysis focuses on the complaint and the documents
incorporated by reference into it, and a court considering a 12(b)(6) motion answers
18
the purely legal question whether the complaint fails to state a claim on which relief
can be granted. See Scott v. FedChoice Fed. Credit Union, 274 A.3d 318, 322-23
(D.C. 2022). Further, a successful 12(b)(6) motion can end a plaintiff’s case, see,
e.g., Rayner v. Yale Steam Laundry Condo. Assoc., 289 A.3d 387, 396 (D.C. 2023),
while the stakes for a preliminary injunction motion are whether the court will grant
interim relief to alter or maintain the status quo, see Fountain v. Kelly, 630 A.2d 684,
688 (D.C. 1993). Because our adversarial system puts the onus on the parties to tell
a court what they want and why, see Sineneng-Smith, 590 U.S. at 375, a plaintiff’s
request for a preliminary injunction does not usually raise the risk that any of the
plaintiff’s claims might be dismissed under the different 12(b)(6) standard. Compare
Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d 1014, 1019 (D.C. 2013) (“[A] complaint
should not be dismissed because a court does not believe that a plaintiff will prevail
on [his] claim. Indeed it may appear on the face of the pleadings that a recovery is
very remote and unlikely but that is not the test.” (alterations in original)), with
Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 162 (D.C. 2013) (“To grant an
injunction, the trial court must find, among other things, that the moving party has
clearly demonstrated a substantial likelihood of success on the merits.” (citation
modified)); see also Sineneng-Smith, 590 U.S. at 375 (noting that “departures from
the party presentation principle have usually occurred to protect a pro se litigant’s
rights” (emphasis added) (citation modified)).
19
Nothing in the briefing on Mr. Gallo’s specific motion suggests otherwise.
Mr. Gallo sought a preliminary injunction with respect to only “relief items #1-3” in
his complaint, which involved his requests that the defendants modify certain court
filings and submit to a stipulation in the separate D.C. Circuit case. He did not ask
for any preliminary relief with respect to the four other “relief items,” which
requested declaratory relief (and an order that the appellees file a motion to vacate
the D.C. Circuit judgment), damages for alleged fraud, and prejudgment interest.
Accordingly, most of the District’s “likelihood of success on the merits” portion of
its opposition brief focused on the inappropriateness of the injunctive relief that Mr.
Gallo asked for in his motion. To the extent the District’s brief addressed the
sufficiency of the allegations in Mr. Gallo’s complaint, it did so in a single paragraph
that read as follows:
Plaintiff is not likely to succeed on the merits. To start, his
Complaint does not reveal any cause of action. . . . The
Complaint states that Plaintiff “has no remedy at law” for
his alleged concerns and seeks equitable relief. . . . But
equitable relief is relief, not a cause of action, and “a court
cannot grant a remedy without a cause of
action.” . . . Plaintiff’s Motion should thus be denied.
Thus, even if a defendant’s brief opposing a motion for a preliminary
injunction can be an appropriate avenue for requesting a 12(b)(6) dismissal, the
District’s brief here did not ask for the dismissal of a claim, and it certainly did not
20
ask for the dismissal of all claims with respect to all parties. Cf. New Penn Fin., LLC
v. Daniels, 319 A.3d 997, 1002-03 (D.C. 2024) (holding that the trial court erred
(although harmlessly) where it sua sponte granted summary judgment “on grounds
not raised by a party” without giving notice to the appellant of the court’s intent to
do so as to all claims against all parties, where a prior motion to dismiss was filed
by only one of three parties). Moreover, when the trial court dismissed Mr. Gallo’s
complaint—a month after he initiated his lawsuit—the only proceedings that had
occurred were the filing of the complaint, the service of process, and the briefing
cycle related to the motion for a preliminary injunction. In other words, no filing in
this case could have informed Mr. Gallo that the trial court planned even to consider
the sufficiency of his complaint under Rule 12(b)(6), much less dismiss it for failure
to state a claim.
Because no defendant in this case filed a motion to dismiss and the trial court
failed to provide Mr. Gallo any notice of its intent to consider dismissing his
complaint for failure to state a claim, Mr. Gallo was not on notice that dismissal of
his complaint was a possibility, and he had no opportunity to present arguments that
his complaint was sufficiently pled. See Randolph, 882 A.2d at 226. Therefore, the
trial court’s unannounced choice to venture far afield from the parties’ briefing on
Mr. Gallo’s pro se motion for a preliminary injunction was reversible error. See
21
Sineneng-Smith, 590 U.S. at 375; Carroll v. Fort James Corp., 470 F.3d 1171, 1177
(5th Cir. 2006); Jefferson Fourteenth Assocs., 695 F.2d at 526-27.
We recognize that we review Rule 12(b)(6) dismissals de novo and that we
“may affirm a decision for reasons other than those given by the trial court” in the
Rule 12(b)(6) context. Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d
724, 735 n.14 (D.C. 2000); see also Super. Ct. Civ. R. 61 (providing that trial court
errors are generally presumed harmless “unless justice requires otherwise”). But
here we decline to consider whether to affirm based on our own evaluation of the
complaint under Rule 12(b)(6). As we have urged on prior occasions, the trial court
should generally “set forth its reasoning in a manner that allows this court to review
it.” Fleet v. Fleet, 158 A.3d 486, 492 (D.C. 2017). And while Superior Court Rule
of Civil Procedure 52 does not require the Superior Court to “state findings or
conclusions when ruling on a motion under Rule 12,” we doubt that the Rules
themselves justified the trial court’s failure to explain its reasoning here because the
court acted sua sponte and thus did not “rul[e]” on a “motion under Rule 12.” Super.
Ct. Civ. R. 52(a)(3). Instead, because no party moved for a 12(b)(6) dismissal and
the trial court did not explain its actions, we face a record devoid of any reasoning
for the result at the trial level. Cf. Vincent v. Anderson, 621 A.2d 367, 372-73 (D.C.
1993) (examining the appellee’s motion to dismiss to determine the bases for
22
dismissal where “[t]he trial court dismissed appellant’s complaint without specifying
its reason for doing so”); Beard v. South Main Bank, 615 A.2d 203, 205 (D.C. 1992)
(noting that “[o]ur review in this case is severely hindered by the trial court’s failure
to state on the record the reasons for its decision” denying a motion to dismiss for
forum non conveniens). To affirm based on our own review of the sufficiency of the
complaint under these circumstances would erode the fundamental principle that, as
an appellate body, “we are a court of review, not of first view.” Tax Analysts v.
District of Columbia, 298 A.3d 334, 342 n.25 (D.C. 2023) (citation modified). We
decline to step into the trial court’s shoes in this instance.
III. Conclusion
For the foregoing reasons, we reverse the judgment of the trial court and
remand for further proceedings.
So ordered.