June 13, 2011 Articles

Going Beyond the Complaint in Motions to Dismiss

Defendants must thoroughly know when they can refer to documents outside of the complaint in a motion to dismiss

By John J. Bajger

Iqbal dramatically changed motions to dismiss in federal court. Courts must now take a searching look at the complaint's allegations and determine whether the allegations are plausible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Courts can even go as far as inferring lawful explanations for the defendant's alleged conduct from the allegations. Given these vigorous pleading standards, motions to dismiss have become a powerful weapon for defendants to attack complaints. To further this goal, and to maximize the effectiveness of motions to dismiss, defendants (and plaintiffs for that matter) must thoroughly know when they can refer to documents outside of the complaint.

At the outset, we must address the potential hazard of going beyond the four corners of the complaint. Federal Rule of Civil Procedure 12(d) provides that if "matters outside the pleadings" are presented on a motion to dismiss or a motion for judgment on the pleadings and the court does not choose to exclude them, the court must convert the motion into one for summary judgment, a potentially disastrous turn in the litigation. The question becomes when can a defendant refer to documents outside of the complaint in motions to dismiss without running the risk of having the court transform the motion into one for summary judgment?  

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