wordsworth

One reason to amend the complaint is to remove the consequence of including the Ninth Circuit orders within the “four corners” of the complaint. As things stand now it is possible for the other side to say that because the orders are referenced (and consequently included) in the complaint all that is said in those orders must be accepted as true. That is a problem because one thing those orders say is that our amended complaint in state court contained no allegations of “bad faith.” Of course, that is incorrect. But if the order is accepted as true (because it is incorporated in the complaint), then we can not challenge it.

These thoughts were prompted by listening to oral argument in Chabad Chayil, Inc.  v. School Board of Miami-Dade County, No. 21-10619 (11th Cir. Sept. 8, 2022). The underlying case was Chabad Chayil, Inc.  v. School Board of Miami-Dade County, Civil Action No. 20-21084-Civ-Scola (S.D. Fla. Jan. 5, 2022).

Chabad cites Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). Speaker states:

If matters outside the pleadings are presented by the parties and considered by the district court, the Rule 12(b)(6) motion must be converted into a Rule 56 summary judgment motion. Fed. R.Civ.P. 12(d). This Court, however, has recognized an important qualification to this rule where certain documents and their contents are undisputed: “In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1337 (11th Cir.2010); see also Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir.1999) (stating that “a document central to the complaint that the defense appends to its motion to dismiss is also properly considered, provided that its contents are not in dispute”). In its order, the district court relied upon Defendant CDC’s supporting exhibits and its “statement of material facts about which there is no genuine dispute” derived in part from those exhibits. Because the materials relied upon by the district court are not disputed (at least at this juncture),^[8] and because they are central to Plaintiff’s claim, we similarly incorporate their contents to determine whether Speaker has alleged sufficient facts to state a claim

Chabad also cites Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). Griffin states:

Although Griffin’s complaint makes the conclusory allegation that it is similarly situated to American Proteins in all relevant ways, the exhibits attached to the complaint plainly show that this is not the case. Our duty to accept the facts in  the complaint as true does not require us to ignore specific factual details of the pleading in favor of general or conclusory allegations. Indeed, when the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern. See Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir.1974) (“Conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by a document appended to the complaint. If the appended document, to be treated as part of the complaint for all purposes under Rule 10(c), Fed.R.Civ.P., reveals facts which foreclose recovery as a matter of law, dismissal is appropriate.” (citation omitted)); Simmons, 113 F.2d at 813 (“Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control.”).

In Simmons the court said:

Appellant now argues that, under Rule 8, it takes very little to state a valid claim, and says all that is needed is a short and plain statement showing that the pleader is entitled to relief. We heartily agree to this, and, if appellant had practiced accordingly, much labor might have been saved; but this course was not followed, even as to amendments made after the new rules became effective. No exhibits were ever stricken from the complaint, although the court below urged the plaintiff’s counsel to indicate definitely each and every part of the exhibits relied upon as making a contract. In response to this, there was a further amendment presented by which twenty-one of the twenty-four exhibits, formerly a part of the petition, were reasserted in abbreviated form. In a brief accompanying the amendment, appellant’s counsel indicated that “all the letters attached to the amendment” either made the contract or showed that one had been made. The court below held that these letters not only did not show an express contract, but refuted the inference of an implied one.

This is not a case where the plaintiff has pleaded too little, but where he has pleaded too much and has refuted his own allegations by setting forth the evidence relied on to sustain them. The appellant was not content to make a short and plain statement of the facts, but undertook to plead evidentiary facts in detail. The motion to dismiss admits these facts to be true, but denies their legal effect. The court below held that the written correspondence, submitted by appellant, made it clear that there was no liability under either count. Where there is a conflict between allegations in a pleading and exhibits thereto, it is well settled that the exhibits control.

So, at this point, to go beyond Allen v. McCurry and beef up a “no full and fair opportunity” argument, we could – even without amendment – still argue that the Ninth Circuit finding of no “bad faith” is still in dispute. Or, we could amend to squarely dispute the finding.

As the court said in Chabad, by reference to Newton v. Duke Energy Fla., LLC, 895 F.3d 1270, 1277 (11th Cir. 2018), and Long v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999):

[A] plaintiff wishing to amend its complaint must file a separate motion for leave to amend and either set forth the substance of the proposed amendment or attach a copy of the amended pleading.