In the U.S. Court of Appeals for the Second Circuit, a court may consider a document attached to a motion to dismiss when the plaintiff has relied on “the terms and effect of [the] document in drafting the complaint.” Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002). This frequently invoked rule gives substance to the important procedural protection of Fed. R. Civ. P. 12(d), guarding plaintiffs against the surprise of having to respond to a document prior to discovery and summary judgment. However, despite more than 20 years of case law, the courts have not settled on a single statement of the rule.

The seminal Chambers case cited two different statements of the rule in addition to creating a new formulation, and each of the three formulations continues to be cited. Chambers also firmly imposed a reliance requirement but the key concepts of the rule—”integral” and “reliance”—have never been defined, weakening the effect of that admonition. In addition, the rule has been widely used to prevent plaintiffs from defeating a “properly argued” motion to dismiss through artful pleading. This goal is worthy but unrelated to Rule 12(d). In the absence of clear guidance on these issues, the rule has been applied in unpredictable ways by the district courts. This article describes the rule and proposes changes that would clarify it and ground it more firmly in the federal rules.

Motion to Dismiss

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