First Circuit Rejects "Expansive View" Of Admitting Public Records At Motion To Dismiss Stage

At the motion to dismiss stage, what extrinsic documents may be considered? First Circuit rejects an "expansive view that any document held in a public repository" is admissible during a motion to dismiss stage under Fed. R. Civ. P. 12(b)(6); although evidence might possibly be admitted under the FRE during trial, it is not entitled to consideration in the summary judgment context because it may "simply lack any indicia of reliability whatsoever" or may not be amenable to judicial notice under FRE 201, in Freeman v. Town of Hudson, 714 F.3d 29 (1st Cir. April 15, 2013) (No. 12-1356)

Under Fed. R. Civ. P. 12(b)(6), a motion to dismiss for failure to state a claim may be filed based on the assumption that the facts alleged in the complaint and attached exhibits are true. Evidence extrinsic to the complaint itself can be considered only if it fits within certain limited exceptions, such as that it constitutes a fact subject to judicial notice or a matter of public record whose authenticity is unquestioned. The First Circuit recently considered a case in which it describes whether this approach is to be employed as an "expansive" or as a "restricted" standard.

Use Of Extra-Record Documents In Motion Practice

The case involved a civil rights Section 1983 suit alleging discriminatory enforcement of property restrictions brought against the defendant Town of Hudson. The dispute began when a neighbor of the plaintiff wrote the town that the plaintiff was constructing a tree house in a conservation restriction area of the plaintiff's property ("Parcel B") which was located in the town. Based on this complaint, the town ordered the plaintiff to cease any further activity in Parcel B pending a future hearing.

The plaintiffs claimed that the town's apparently-vigorous enforcement of its land-use laws and restrictions was discriminatory. The plaintiff alleged that the Parcel B restriction was being zealously applied to the plaintiff, but not to others located on the same parcel. One neighbor had been allowed to built a swimming pool in violation of the restriction. Another built a plank walking path in the conservation restriction area. The district court dismissed the case for failure to state a 1983 claim and the plaintiffs appealed.

Excluded Evidence

Resolving the matter required sorting through 25 exhibits the plaintiff appended to the complaint, as well as materials "both parties submitted ... [in] a flurry of extrinsic exhibits for the district court's consideration." In deciding the motion, the court "took account of some documents but excluded others." On appeal, the plaintiffs "challenge[d] the court's decision not to consider 6 documents that they submitted, while simultaneously suggesting that the court relied on those very same documents in its order, presumably to the Plaintiffs' detriment." Freeman, 714 F.3d at __ .

The circuit disagreed, noting that in a motion to dismiss context, extrinsic documents could be considered, including:

  1. "documents the authenticity of which are not disputed by the parties"
  2. "official public records"
  3. "documents central to plaintiffs' claim" and
  4. "documents sufficiently referred to in the complaint"

According to the circuit, none of the plaintiffs' "submissions ... fit into any of these enumerated categories." Freeman, 714 F.3d at __ .

Application

The Circuit explained that this limited evidentiary regime remains unsettled in terms of its scope and that evidence that would normally be admissible under the FRE can be precluded unless it can be fit into one of the various exemptions for extrinsic evidence. Accordingly, when the First Circuit considered the trial court's use and failure to use extra-record documents in the context of a Fed. R. Civ. P. 12(b)(6) motion to dismiss, it employed evidentiary standards governing the use of extra-record documentary evidence related to the motion.

In particular the circuit focused on the plaintiffs' claim:

that 3 submissions should have been considered as public records. These include a transcript of 911 calls and 2 Hudson Police incident reports. The Plaintiffs ask us to adopt the expansive view that any document held in a public repository falls within the category of extrinsic materials that may be considered. It is true that, when reviewing a motion to dismiss for failure to state a claim, a court may "consider ‘matters of public record.’” But there are limits to that license. Many documents in the possession of public agencies simply lack any indicia of reliability whatsoever. In that regard, they are unlike official records, such as birth or death certificates and other similar records of vital statistics. The Freemans cite no authority—other than Watterson—for their broad interpretation, and we have found none. Rather, the phrase “official public records” when used in the present context, appears limited, or nearly so, to documents or facts subject to judicial notice under Federal Rule of Evidence 201. Watterson, in holding that a court could consider public records on a motion to dismiss, relied on the Ninth Circuit case Mack v. S. Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107 (1991). The public record at issue in that case was a state administrative proceeding and the Ninth Circuit used the term “public records” synonymously with a document susceptible to judicial notice.

Freeman, 714 F.3d at __ (citing Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011); (citing Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C.Cir. 1979) (“We are mindful, too, that when passing on a motion attacking the legal efficacy of the plaintiff's statement of his claim, the court may properly look beyond the complaint only to items in the record of the case or to matters of general public record.”)).

Conclusion

The Freeman case serves to demonstrate that even where the FRE are not directly applicable to a case, it still influences evidentiary approaches at key stages of the case. In the motion to dismiss context, treatment of public records makes no reference to FRE 803(8) regarding the admissibility of public records. Rather, to the extent the court can use public record evidence, it is limited to a record that is admissible under FRE 201. This makes sense in the motion to Fed. R. Civ. P. 12(b)(6) context as FRE 201 concerns a matter upon which there is no dispute, whereas FRE 803(8) pertains to evidence which, once admitted, will need to be weighted.

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