The United States Court of Appeals for the Eleventh Circuit recently clarified the incorporation-by-reference doctrine in terms of how a lower court may treat documents outside the four corners of the complaint in deciding both motions to dismiss and motions for judgment on the pleadings with respect to Federal Rule of Civil Procedure[1] 12(d). This clarification of the incorporation-by-reference doctrine allows for federal courts in Florida, Alabama and Georgia to consider a document not referred to or attached to the complaint if the document is central to the Plaintiffs(s)’ case and is undisputed. Previously, there had been differing views of the incorporation-by-reference doctrine with respect to the documents courts could consider in potentially converting a motion to dismiss and/or a motion for judgment on the pleadings into a motion for summary judgment subject to Fed. R. Civ. P. 56.
Motions to Dismiss and Motions for Judgment on the Pleadings
Prior to filing a responsive pleading, a motion to dismiss is a customary procedural tool for defendants should there be a reasonable basis to request the formal dismissal of the Plaintiffs(s)’ case. Fed. R. Civ. P. 12(b) governs motions to dismiss and provides that a court generally may not consider matters outside the four corners of the complaint.
Similarly, a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is proper after the pleadings are closed so long as it is filed within a time that does not delay the trial in the case and is typically determined solely on the face of the pleadings.
Traditionally, matters raised outside the pleadings are not excluded by the court and the motion is treated as one for summary judgment under Fed. R. of Civ. P. 56.
Differing Views of the Incorporation-by-Reference Doctrine
Before the Johnson v. City of Atlanta decision (a case summarized below), the Eleventh Circuit had a number of conflicting opinions on how documents were to be treated under the incorporation-by reference doctrine with respect to the determination of a motion to dismiss and/or a motion for judgment on the pleadings and vacillated between two tests concerning its application.
Certain opinions have found that the document need only be:
(1) central to the plaintiffs(s)’ claim; and
(2) undisputed (the document’s authenticity is not challenged) in order for the court to consider it.
See Julmist v. Prime Ins. Co., 92 F.4th 1008, 1016 (11th Cir 2024) (determining the district court appropriately considered an insurance policy attached to a motion to dismiss because it was central to the plaintiff’s claims and undisputed.)
Other decisions, however, held that three elements were required:
(1) the plaintiff(s) must directly refer to the document attached to the complaint;
(2) the document must be central to the claim; and
(3) the document must be undisputed.
See Hi-Tech Pharms, Inc. v. HBS Int’l Corp., 910 F3d. 1186, 1189 (11 Cir. 2018) (under the doctrine of incorporation-by-reference, we may also consider documents attached to the motion to dismiss if they are referred to in the complaint, central to the plaintiff’s claim, and of undisputed authenticity).
Johnson v. City of Atlanta, 2024 WL 3384936
The plaintiff, Charles Johnson Jr., brought a Section 1983 excessive force claim against a police officer and the City of Atlanta in the U.S. District Court for the Northern District of Georgia for injuries he suffered when he was arrested for driving under the influence. The City of Atlanta moved to dismiss the claim under Fed. R. Civ. P. 12(b)(6), while the police officer answered the complaint and referred to bodycam video footage of the incident with the plaintiff. The officer then moved under Fed. R. Civ. P. 12(c) for judgment on the pleadings and submitted the bodycam video to support his motion. The federal trial court granted both motions, in reliance on the bodycam video.
In addressing the incorporation-by-reference doctrine, the court of appeals reviewed various opinions previously issued by the Eleventh Circuit requiring that for a document or evidence to be considered on a motion to dismiss or motion for judgment on the pleadings, it must have been referenced in or attached to the plaintiff’s complaint in connection with the three-part test in order for a trial court to incorporate the document by reference and, thus, consider it on a motion to dismiss: 1) the document was referenced in the complaint or attached to the complaint; 2) the document was central to the plaintiff’s claims; and 3) its authenticity was undisputed.
In considering the facts in Johnson, the court departed from the aforementioned three-part test and issued the first published decision that addressed whether a document not referenced in a complaint nor attached to the complaint could be considered by the trial court in ruling on a motion to dismiss and/or motion for judgment on the pleadings and found that the only two elements required are that the document be central to the plaintiff’s claims and undisputed. In doing so, the Eleventh Circuit concluded that the incorporation-by-reference doctrine requires only two elements, finding that:
[W]hen resolving a motion to dismiss or a motion for judgment on the pleadings, a court may properly consider a document not referred to or attached to a complaint under the incorporation-by-reference doctrine if the document is (1) central to the plaintiff’s claims; and (2) undisputed, meaning that its authenticity is not challenged.Johnson, 2024 WL 3384936 at *6.
Conclusion: Potential Impacts of Johnson
The determination made by the Eleventh Circuit in Johnson has finally provided clarity as to an area of the law once mired with conflicting opinions. Counsel on either “side of the v”, to use a colloquial term, now can proceed knowing that the burden is far lower with respect to the documents that will be considered by a court on either a motion to dismiss or a motion for judgment on the pleadings. Indeed, such a finding will likely reveal a change in strategy by most litigators considering that the odds of prevailing on a motion to dismiss have increased. This potential change in strategy may result in a faster and more efficient resolution of cases, either through litigation or settlement, which could potentially decrease ever increasing litigation expenses.
[1] Herein cited as “Fed.R.Civ.P.”
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