We all know that attacking jurisdiction under 12(b)(1) is a new tactic to bring in the kitchen sink when confronting a newly-filed complaint, but just how far can you go with extrinsic documents under a traditional 12(b)(6) analysis?
Turns out pretty darn far:
For purposes of Rule 12(b)(6) review, which applies to conduct alleged to have occurred on or after March 23, 2010, a court generally may not look beyond the pleadings. See Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1266 n.11 (11th Cir. 1997). The pleadings include any information attached to a complaint. Fed. R. Civ. P. 10(c); Crenshaw v. Lister, 556 F.3d 1283, 1291 (11th Cir. 2009). We have explained, however, that a district court may consider an extrinsic document even on Rule 12(b)(6) review if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010). In addition, a district court may consider judicially noticed documents. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).Ads and a transcript from state court?
Here, the district court considered documents that were attached to Mr. Osheroff’s amended complaint and were part of the pleadings. The court also took judicial notice of the complete list of documents in the defendants’ unopposed motion for judicial notice, including five Miami Herald articles, two advertisements in the Miami Herald, the transcript of a hearing in another case involving a defendant clinic in state court, and the Special Master’s Report in that case.4 None of these documents was improperly considered for the purposes of a Rule 12(b)(6) motion.
Just what exactly would have been considered improper for the district judge to consider?
This feels like a bad trend.