Celebrating 10 years! 2007-2017

Matters Outside of the Complaint - 12(c) Motion to Dismiss

Anybody have any ways to get a matter outside of the complai jd4hire04/10/17
The partner sees something in the pleadings that they believ chunkyjd04/13/17
Not sure if it's standard practice but my district will rout pauperesq04/10/17
I've seen it done for standing arguments. You basically say 2breedbares04/10/17
Yes, request the Court take judicial notice of whatever it i interveningrights04/10/17
It's called a MSJ. BUT... if docs are ones that are menti municipald104/13/17
The Court can consider extrinsic evidence in determining sub 2breedbares04/13/17
The partner wants a motion for judgment on the pleadings fil specv31304/13/17
jd4hire (Apr 10, 2017 - 1:47 pm)

Anybody have any ways to get a matter outside of the complaint considered at a rule 12(c) - judgment on the pleadings - motion to dismiss?

No need to advise just to move for SJ...that's what I'd like to do, but for some unknown reason, the partner wants it done via 12(c) and wants me to incorporate evidence outside of the complaint.

I'm coming up short on how to do so. Had we attached certain exhibits to our answer, then maybe, but otherwise I just don't see it happening.

Tips?

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chunkyjd (Apr 13, 2017 - 11:24 am)

The partner sees something in the pleadings that they believe will dispose of the matter. Check the complaint again, and documents that were filed with it. You're looking for something other than the ones in 12(b)(6). Look for an admission or an omission with which you can attack the sufficiency of the claim or defense. Also, check if there's a SMJ issue, which can be disposed of with a 12(c) motion. The nature of 12(c) is that all the information is contained within the closed universe of the pleadings.

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pauperesq (Apr 10, 2017 - 1:52 pm)

Not sure if it's standard practice but my district will routinely convert 12(b)(6) motions into summary judgment motions if exhibits are attached. I've never done this for a 12(c) motion though.

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2breedbares (Apr 10, 2017 - 2:00 pm)

I've seen it done for standing arguments. You basically say the plaintiff has no standing as matter of law and you can attach evidence showing why he/she has no standing. Therefore, any amendment plaintiff wants to do is invalid and you're entitled to judgment as a matter of law. I'm sure there are a lot of theories you could use, though.

You could also use 12(c) to attack SMJ. As you know, the court can consider extrinsic evidence to determine SMJ.

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interveningrights (Apr 10, 2017 - 2:35 pm)

Yes, request the Court take judicial notice of whatever it is you want to have them consider. FRE 201. If they deny your request, they'll likely convert your 12(c) into a MSJ.

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municipald1 (Apr 13, 2017 - 12:34 am)

It's called a MSJ.

BUT... if docs are ones that are mentioned in the complaint (contracts, esp. ins policies) or can be taken notice of, you can do it.

No way any declarations or dep testimony comes in.

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2breedbares (Apr 13, 2017 - 12:45 am)

The Court can consider extrinsic evidence in determining subject matter jurisdiction, e.g. if the dispute doesn't exceed $75,000 in value.

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specv313 (Apr 13, 2017 - 11:03 am)

The partner wants a motion for judgment on the pleadings filed with extrinsic evidence. Seems kinda stupid. I'm aware of attaching extrinsic documentation to an answer to the complaint, then moving to judgment on the pleadings, but I've never seen a party introduce a wholly new piece of evidence to a motion for judgment on the pleadings itself.

Why not just call it what it is - a motion for summary judgment. MSJs can be similar to judgment on the pleadings when the moving party relies, for the most part, on admissions in the pleadings to demonstrate entitlement to judgment as a matter of law. Federal Rule 56 defines the record, for purposes of summary judgment, to include "admissions" - i.e., either an admitted request for admission, or an admission to a factual allegation in the pleadings.

It's gonna look kinda contradictory when your Rule 12(c) motion cites the standard governing motions for judgment on the pleadings (i.e., no outside evidence may be considered), and then you go ahead and rely on an outside piece of evidence. I'd make an effort to talk to the partner about this.

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