Recurring Problem: There were five different documents, which are either individual or at best can be grouped into 3. Cannot just refer to "the documents;" they are different and raise different issues and require different analyses. Analysis must be specific and detailed; you cannot speak too generally.
Also (and this is not limited to the essays--it came up in class on Thursday): There seems to be confusion about the first sentence of FRCP 10(c). It says a "statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion." Note the language: "statement in a pleading" adopted by reference; this has nothing to do with documents or statements in documents being referenced in the pleading. As we said in class, the "referenced-and-relied on" idea comes as an extension of the second sentence of FRCP 10(c) making documents part of the pleading.
The court cannot consider these documents on a 12(b)(6) motion. If it considers them, it should convert the motion to one for summary judgment, give plaintiff an opportunity to present more materials, and perhaps allow discovery.
A motion to dismiss for failure to state a claim upon which relief can be granted under FRCP 12(b)(6) tests the legal and factual sufficiency of the claim. The court on a 12(b)(6) examines the four corners of the complaint. This includes the allegations in the pleading and written instruments attached as exhibits to the pleading and made part of it for all purposes. FRCP 10(c). Rule 10(c) extends to documents that, while not attached to and part of the pleading, are referred to and relied on in the allegations; the complaint incorporates the document makes it part of the pleading for all purposes. This extension is limited. The complaint must reference documents or facts contained in documents and must rely on those documents in laying out the pleaded facts. This does not include documents that are not relevant to the facts pleaded, documents the complaint does not mention or describe, and documents that the complaint disclaims entirely; the court cannot look to unmentioned documents that contradict allegations in the complaint. A court also can take judicial notice of facts that are generally known and whose accuracy cannot reasonably be questioned. This includes facts contained in public or government documents; as generally known facts, they are essentially within the pleading.
If a court considers and does not exclude matters outside the complaint, it must convert a 12(b)(6) motion to one for summary judgment, allowing the parties time to submit materials. FRCP 12(d). This also may include giving the parties time for discovery. Thus, where the defendant presents outside documents as part of a 12(b)(6) motion, the court must determine whether the complaint referenced and relied on those documents, so they become part of the complaint. If they meet that standard, the court can consider them in resolving the 12(b)(6) motion. If the complaint did not reference-and-rely, the court has a choice—ignore the documents and resolve the motion as a 12(b)(6) or consider the documents by converting to a motion for summary judgment.
Defendant offered five documents in support of its motion, in three groups. The complaint did not reference or rely on any of them and none is relevant.
College of Pharmacy Student Handbook and Rules of the Tennessee Board of Pharmacy
Defendant argues that Plaintiff’s posts violated the requirements of the College and the Board of Pharmacy; neither can be treated as part of the pleading. Plaintiff alleges that the Committee found generally that her posts violated “the College’s professionalism standards” (¶ 20) or the “Technical Standards for students.” (¶ 24). But the complaint alleges that the Committee never identified or specified what those standards are, which rules she violated, and the source of those rules. (¶¶ 19, 25). These allegations do not mention or refer to either document. Vague references to “standards” are not sufficiently specific to incorporate either document, as the Complaint does not allege that the Committee relied on or even mentioned either set of rules in investigating and expelling Plaintiff.
Both documents are public records, created by the State of Tennessee and the College, which is part of a state-created institution (¶ 4); the court can take judicial notice of the documents and the facts contained in them. But the documents remain irrelevant to the pleading, which does not refer to or rely on their content. The court cannot take judicial notice of unrelated facts.
Pledges
Defendant offers two documents titled “Professional Pledge,” signed by Plaintiff; in one she agrees to abide by the Student Handbook and in the other she agrees to abide by the Rules of the Board of Pharmacy. Plaintiff alleged that she never received or reviewed copies of any rules of conduct or professionalism established by the College of Pharmacy, the University of Tennessee, or the Tennessee Board of Pharmacy. (¶ 29). She thus expressly disclaimed, rather than relied on, these documents and their content. The pledges do suggest that the allegation in ¶ 29 is false. But a court on a 12(b)(6) motion must take the allegations as true and draw all reasonable inferences in favor of the plaintiff. It cannot consider evidence contradicting that allegation. Defendant may use this document to defeat Plaintiff’s claim later in the litigation. But it cannot rely on that document at the 12(b)(6) stage.
Screenshots of Posts
Defendant offers screenshots of twelve of Plaintiff’s social-media posts in support of the argument that those posts properly formed a basis for Committee action. The motion does not explain whether these posts formed the basis for the Committee’s decision or why they are otherwise relevant. According to the Complaint, George and the Committee never identified or described the social media posts that triggered complaints and would be reviewed (¶¶ 19, 24) and never identified or described the posts it found violative. (¶¶ 20, 27). The Complaint did not mention these twelve posts or allege that they were the basis for her punishment; Plaintiff could not have done so because, according to the Complaint, she did not know which posts the Committee considered. As far as the facts in the Complaint, these posts are irrelevant. Again, they may become relevant to defeating Plaintiff’s case, specifically whether she was aware of her professionalism obligations, at a later stage in the litigation. But not on this motion.
Because these documents cannot be treated as part of the four corners of the complaint, the court cannot consider them in resolving the current motion as a 12(b)(6). Plaintiff urges the court to disregard these five documents and to resolve the motion relying only on the four corners of the complaint. If the court chooses to consider them, it must convert the motion to one for summary judgment; if it does that, Plaintiff requests time to discover and submit materials in opposition.
