The limitations on what a court can consider in deciding a Rule 12(b)(6) motion are well known. Rule 12(d) states that if a motion to dismiss presents “matters outside the pleadings,” then the court is required to treat it as one for summary judgment and give the non-movant a reasonable opportunity to present its own materials pertinent to the motion. At a glance, this rule seems straight forward—if the four corners of a complaint state a plausible claim for relief, then it cannot be dismissed under Rule 12(b)(6).
Some years ago, however, the Supreme Court took some liberties with this seemingly clear limitation. It held that “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” So here are two categories of evidence that are extraneous to the complaint, but that a court “must” consider in evaluating a Rule 12(b)(6) motion. But even with this expansion, plaintiffs still largely controlled the Rule 12(b)(6) record because they got to decide what documents, if any, would be “incorporated into the complaint by reference.”
Wright & Miller also have a view on this question. “Memoranda of points and authorities as well as briefs and oral arguments in connection with the [Rule 12(b)(6)] motion…are not considered matters outside the pleadings for purposes of conversion [to summary judgment]. The same is true for various types of exhibits that are attached to the pleadings, matters of which the district court can take judicial notice, and items of unquestioned authenticity that are referred to in the challenged pleading and are ‘central’ or ‘integral’ to the pleader’s claim for relief.” This last clause enlarges the circle a bit further to include all other documents that are referenced in a complaint and directly relate to a claim. Notably, Wright & Miller command consideration of any documents that are “central or integral” to a plaintiff’s claim, not just those that tend to bolster or support it.
Courts have construed these exceptions to give defendants a voice in deciding what documents will be included as part of the Rule 12(b)(6) record. In Lydick v. Erie Insurance Property & Casualty Co., for example, the U.S. Court of Appeals for the Fourth Circuit considered a claim for underinsured motorist benefits, and the defendant insurance carrier attached to its motion to dismiss the parties’ previously executed settlement agreement. The court determined the settlement agreement to be “integral” to the plaintiff’s claims, rejected his allegation that it was procured by fraud or mistake, and affirmed the trial court’s Rule 12(b)(6) dismissal.
In some cases, the adjudication of a Rule 12 motion can look a lot like a summary judgment. In Von Kaenel v. Armstrong Teasdale, LLP, the U.S. Court of Appeals for the Eighth Circuit heard a challenge to the defendant’s mandatory retirement policy under the Age Discrimination in Employment Act (ADEA). The plaintiff had previously filed a charge of discrimination with his state’s Equal Employment Opportunity Commission and given sworn testimony as part of that proceeding. The defendant attached a transcript of the plaintiff’s testimony to its Rule 12(c) motion for judgment on the pleadings. The appellate court held that the trial court properly considered the plaintiff’s earlier testimony and affirmed the dismissal of his ADEA claim based on a collateral estoppel argument.
Traditionally, the jurisprudence surrounding Rule 12 motions leaned toward protecting the plaintiff’s right to have its claim heard. This was reflected in the plaintiff’s right to decide what would be included in a complaint. For example, a plaintiff might allege a defamatory statement by the defendant, but sensibly choose to omit facts suggesting that the statement might be objectively true. Simply stated, a plaintiff is not required to plead facts that tend to undercut the right to relief. And whether a claim was subject to early dismissal under Rule 12 was supposed to be determined by what appeared in the complaint.
But Rule 12(b)(6) is bending in the other direction. First, there are more categories of extraneous evidence that a court is at least permitted, if not required, to consider in deciding a Rule 12 motion. And there is seemingly more leeway given to trial courts on what they can include in those categories. Second, and relatedly, courts are willing to grant a Rule 12(b)(6) motion based on an affirmative defense. And the facts underlying that affirmative defense will almost always be reflected in the materials submitted with the motion to dismiss, not within the content of the plaintiff’s complaint.
Plaintiffs should be on guard that the inevitable Rule 12(b)(6) motion may have a distinctly summary judgment feel to it. This demands thorough pre-filing investigation and document review, so as to anticipate what extraneous evidence a Rule 12 motion might bring. For their part, defendants should be creative and aggressive in including evidence with their motions to dismiss that might end a fight before it even gets started.
