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When Is a Motion to Dismiss Not a Motion to Dismiss?

Charles Samuel Fax


  • The article discusses the use of extrinsic exhibits in Rule 12(b) motions to dismiss.
  • Extrinsic documents integral to the claim can be considered without converting the motion to summary judgment.
  • For other Rule 12(b) motions, extrinsic materials can be used, and facts may be heavily contested without undermining the motion's efficacy. Limited discovery may be appropriate in some cases.
When Is a Motion to Dismiss Not a Motion to Dismiss?
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I recently asked a federal judge whether there were any particular procedural points that lawyers routinely misunderstood. “Yes,” he answered immediately. “One issue arising much more frequently than I would have imagined is when may ‘extrinsic’ exhibits that have not been pled in the complaint be used in support of, or in opposition to, a Rule 12(b) motion to dismiss.” He suggested that a primer on the subject might be useful. Here it is.

The starting point is Civil Rule 12(d), “Result of Presenting Matters Outside the Pleadings.” “If, on a motion under Rule 12(b)(6) [to dismiss for failure to state a claim] . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” While that seems clear enough, seasoned practitioners know that the court, in adjudicating a Rule 12(b)(6) motion, in fact may consider an extrinsic document that is integral to the complaint (whether or not the complaint quotes or specifically references the document) and whose authenticity is not contested. Further, a court may take judicial notice of matters in the public record. Documents within this exception may be proffered by either party.

An “integral” document, however, is not simply one that contains information utilized in the complaint. Rather, the document must be integral to the claim itself—for example, an allegedly fraudulent document in a fraud action, an allegedly libelous article in a libel action, and the contract documents in a contract action. An extrinsic document quoted in the complaint, or containing information that furthers its narrative—but that may not be reliable—will not satisfy the exception. And while a public document is entitled to judicial notice, such notice is limited to the fact of the document’s existence, not its accuracy.

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.