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Just What Can You Consider on a 12(b)(6) Motion Nowadays?



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).

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.
Ads and a transcript from state court?

Just what exactly would have been considered improper for the district judge to consider?

This feels like a bad trend.

Comments

  1. It's worth noting that the request to judicially notice those documents was unopposed. And even though footnote four says that the documents were properly considered anyway, the court does note that you can consider the documents only for what they state, not for the truth of what they state (the court gives this caveat in regard to the articles, but I believe it applies equally to court documents).

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  2. From the opinion it seems they made more than a few mistakes below.

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  3. The public disclosure bar in the False Claims Act is unique. Here those documents were able to be considered at least partly because their truthfulness was irrelevant, or put another way, the documents were entirely consistent with material facts that were alleged in the complaint.
    I think this is unlikely to have a major effect in non False Claims Act cases, and in any event should not allow a defendant to submit extraneous documents in order to refute allegations of the complaint any more than they are permitted to do so in limited circumstances already.

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  4. I agree and it would have been better had the Court said that.

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  5. The doctrine is not novel and is also not dangerous, if the court applies it properly, i.e., not accepting the other documents for the truth, authenticity uncontested, central to the allegations.

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