By contrast, in entertaining any other Rule 12(b) motion, the court may consider any extrinsic material deemed pertinent, without converting the motion to one for summary judgment. Thus, parties frequently append affidavits, authenticated documents, public record documents, transcripts of testimony and the like to motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1); want of personal jurisdiction under Rule 12(b)(2); improper venue under Rule 12(b)(3); insufficient process under Rule 12(b)(4); insufficient service of process under Rule 12(b)(5); and failure to join an indispensable party under Rule 12(b)(7).
Indeed, in any Rule 12(b) motion—with the exception of a Rule 12(b)(6) motion (in which the well-pled allegations of fact in the complaint are accepted as truthful for purposes of the motion)—the facts on which the motion’s adjudication turns may be heavily contested. That will not undermine the efficacy of the motion. Thus, Judge J. Frederick Motz of the U.S. District Court for the District of Maryland has observed, in adjudicating a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction that: (1) where the motion presents a factual challenge to jurisdiction, the court need not assume that all facts alleged in the complaint are true; and (2) in that context, the allegations in the pleadings are mere evidence, and the court may consider contravening evidence from other sources without converting the proceeding into one for summary judgment. The same is true for the other subsections of Rule 12(b), excepting 12(b)(6), of course.
To be sure, limited discovery may be appropriate to develop the record on a contested matter, e.g., the frequency of contacts with the forum, the adequacy of process, or the necessity of an absent party. I have had several cases in which the parties hotly contested personal jurisdiction, and I recall with amusement one case in which the process server took great liberties with the truth in his affidavit of personal service. In recent years, however, adoption of the “meet and confer” requirement by a number of districts in their local rules as a prerequisite to any motion—even a motion to dismiss—has diminished the need for such discovery in those districts, and in many cases mooted the motion itself. While the federal rules codify the “meet and confer” requirement only as to discovery disputes (see Rule 37(a)(1)), it may be time to include that requirement in Rule 12.