United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING PLAINTIFF'S MOTION TO EXCLUDE OR
FOR NOTICE AND LIMITATION
WALTON PRATT, JUDGE
matter is before the Court on a Motion to Exclude or for
Notice and Limitation (Filing No. 21)
(“Motion to Exclude”) filed by Plaintiff Richard
Jefferson Deibel (“Deibel”). Following the sale
of a corporation in which he was a shareholder, Deibel filed
suit against Defendants Larry Hoeg, Aaron Hoeg, and Roger
Steffen (collectively, “Defendants”)-other
shareholders of the corporation-for claims of breach of
fiduciary duty, conversion, and criminal conversion. The
Defendants promptly filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), asserting a bar by
the applicable statutes of limitations, and attached nine
documents to the brief supporting dismissal. Five days later,
Deibel filed this Motion to Exclude, asking the Court to
exclude the Defendants' exhibits attached to their motion
to dismiss. Deibel asked the Court, in the alternative, to
convert the motion to dismiss into a motion for summary
judgment, allow him to respond to a summary judgment motion,
and prohibit the Defendants from filing any additional
summary judgment motions without leave of court. For the
following reasons, the Court grants
Deibel's Motion to Exclude.
ruling on a Rule 12(b)(6) motion to dismiss, courts examine
the allegations in the complaint to determine whether the
allegations support a facially plausible claim for relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). When making this determination, courts are limited to
examining the pleadings, which consist generally of the
complaint and any exhibits or documents attached to or
referenced in the complaint. See Venture Assocs. Corp. v.
Zenith Data Sys. Corp., 987 F.2d 429, 431-32 (7th Cir.
1993); Gee v. Metaldyne Corp., 2008 U.S. Dist. LEXIS
92997, at *2 (S.D. Ind. Nov. 14, 2008). The Seventh Circuit
has recognized one exception to this rule. Courts may
consider the documents attached to a motion to dismiss and
still evaluate the motion under Rule 12(b)(6) if the
documents are referred to in the plaintiff's complaint
and the documents are central to the plaintiff's claim.
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.
1998). However, as Deibel notes, this is a “narrow
exception.” 188 LLC v. Trinity Indus., Inc.,
300 F.3d 730, 735 (7th Cir. 2002).
argues that the documents attached to the Defendants'
motion to dismiss were not referred to in his Complaint and
are not central to his claims. Thus, the documents must be
excluded and not considered by the Court when deciding the
motion to dismiss. Here, the Complaint did not refer to any
documents, and this is not a case involving a breach of
contract claim where Defendant neglected to attach a copy of
the relevant contract to his pleading. Deibel argues that,
alternatively, the Court may consider the Defendants'
exhibits and convert the motion to dismiss into a motion for
summary judgment and allow him to respond to the factual
matters raised in the exhibits.
Defendants respond that it is appropriate and permissible for
the Court to consider the documents attached to their motion
to dismiss when deciding that motion because the documents
are “integral to the claims in the pleading.”
(Filing No. 23 at 2.) Citing but not quoting
Rosenblum v. Travelbuys.com Ltd., the
Defendants assert, “Extrinsic evidence may be
considered part of a complaint when it is: (1) attached to
the pleading; (2) incorporated by reference in the pleading;
or (3) the court deems the evidence integral to at
least one claim in the pleading.” Id.
at 4 (citing Rosenblum v. Travelbuys.com Ltd., 299
F.3d 657, 661 (7th Cir. 2002)) (emphasis added by the
Defendants). They argue that Deibel artfully pleaded his
Complaint to avoid important facts that would doom his
claims, and the documents attached to the motion to dismiss
provide these missing facts that are integral to the claims.
The Defendants further argue,
After reviewing the integral documents attached to
Defendants' Motion to Dismiss, this Court should
determine, through its own experience and common sense,
Plaintiff's claims are time barred. Whether it is through
Defendants' Motion to Dismiss or converted as a motion
for summary judgment, Defendants respectfully submit that the
outcome of dismissal is inescapable.
Id. at 3-4.
Defendants also assert that courts may consider judicially
noticed documents, such as documents contained in the public
record, without converting a motion to dismiss into a motion
for summary judgment. Menominee Indian Tribe of Wisconsin
v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). The 1989
complaint attached to the motion to dismiss is a public
record; therefore, the Defendants assert, the Court may take
judicial notice of that document without converting the
motion to dismiss into a summary judgment motion.
It would be counterproductive and untenable if Defendants
were forced to file a motion for summary judgment on statute
of limitations grounds after the completion of
discovery in case (especially when undisputed evidence exists
to support that the claims are time barred). Such a scenario
is unreasonable and inefficient as it will result in
significant delays and costs, including months of discovery.
(Filing No. 23 at 9.)
case upon which the Defendants rely for the proposition that
the Court may consider extrinsic evidence without converting
a motion to dismiss into a summary judgment motion actually
states, “Documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in
the plaintiff's complaint and
are central to his claim.” Rosenblum, 299 F.3d
at 661 (emphasis added). In the Seventh Circuit, district
courts may consider documents attached to a motion to dismiss
when they are “central to the complaint and are
referred to in it.” Doermer v. Callen, 847
F.3d 522, 526 (7th Cir. 2017).
in Deibel's Complaint does he cite to, quote from, refer
to, or incorporate the documents that the Defendants attached
to their motion to dismiss. The Defendants argue that the
documents supply the missing facts that are central to
Deibel's claims; however, the “missing key
facts” provided by the documents appear to be more
integral to the Defendants' statute of limitations
affirmative defense than to Deibel's claims. Thus, the
Defendants' documents do not qualify as being “part
of the pleadings” for purposes of a Rule 12(b)(6)
motion to dismiss.
it may not be most efficient to exclude the Defendants'
documents attached to their motion to dismiss, efficiency is
not the only concern of the Federal Rules of Civil Procedure.
Even if the Defendants believe that the outcome of dismissal
is inevitable, this is not a basis to skirt the Rules and
deprive a party of the procedural protections afforded by the
Rules. The different standards under Rule 12(b) and Rule 56
provide important protections to the parties, and the