Beware the Motion to Dismiss in Sheep's Clothing

• Pages: 23-23
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Daniel P. Elms
• Subject Matter: Civil Law

he 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 pres-

ents “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).

Rule 12 Practi ce Hears New Howls

Some years ago, however, the Supreme Court took some liberties

with this seemingly clear limitation. It held that “courts must con-

sider the complaint in its entirety, as well as other sources courts

ordinarily examine when ruling on Rule 12(b)(6) motions to dis-

miss, 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 con-

version [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.

The Foxes Have Entered th e Henhouse

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 under-

insured motorist benets, and the defendant insurance car-

rier 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 mis-

take, and afrmed 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 chal-

lenge to the defendant’s mandatory retirement policy under the

Age Discrimination in Employment Act (ADEA). The plaintiff had

previously led 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 afrmed the dis-

missal of his ADEA claim based on a collateral estoppel argument.

Take Caution to the Wolf at t he Door

Traditionally, the jurisprudence surrounding Rule 12 motions

leaned toward protecting the plaintiff’s right to have its claim

heard. This was reected 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 afrmative defense. And the facts underlying that

afrmative defense will almost always be reected in the materi-

als 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-ling 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 ght before it even gets started.

RESOURCES

Tellabs, Inc. v. Mak or Issues & Rights, Ltd ., 551 U.S. 308 (20 07).

Zulueta v. United States , 553 F. App'x 983 (Fed. Ci r. 2014).

General Reta il Servs. Inc. v. Wire less Toyz Franchise, L.L .C., 255 F.

Appx 775 (5th Cir. 2007 ).

Charles Ala n Wright & Arthur Raphae l Miller, Federal Practic e &

Procedure § 1366 (Rev. ed. 2 020).

Beware the Motion to Dismiss in

Sheep’s Clothing

By Daniel P. Elms, Litigation News Immediate Past Editor-in-Chief

SPRING 20 25 • VOL. 50 NO. 3

23 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE

Published in Litigation News Volu me 50, Number 3, Sprin g 2025. © 2025 by t he American Bar A ssociation. Re produced with per mission. All righ ts reserved. Thi s information or an y portion there of may not be copied or

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