Dismissal Motion — Affidavit Offered to Address a Fact Issue Integral to the Complaint

The plaintiff in Jackson v. Alpharma Inc., 2008 U.S. Dist. LEXIS 12787 (D.N.J. Feb. 21, 2008), a putative class action, asserted federal jurisdiction under the Class Action Fairness Act. CAFA jurisdiction requires 100 or more potential class members and an amount in controversy exceeding $5 million. The defendant filed an affidavit from a corporate officer (the “Donohue Certification”) to prove that no more than 19 prospective class members existed and that they could not conceivably claim $5 million. The defendant contended that the Court could appropriately consider the Donohue Certification on a 12(b)(6) motion because it was “offered to address a factual issue integral to the Complaint as to which plaintiffs have provided no support." The District Judge disagreed:

Although the Court may consider a document that is integral to the complaint, [Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)], that does not mean that the Court may consider any document offered to address an integral factual issue. The Court in Burlington Coat clarified that, on a motion to dismiss, the rationale for considering documents integral to or explicitly relied upon in the complaint "is that the primary problem raised by looking to documents outside the complaint - lack of notice to the plaintiff - is dissipated '[w]here plaintiff has actual notice ... and has relied upon these documents in framing the complaint.'" Id. (citations omitted); see also In re Donald J. Trump Casino Sec. Litig., 7 F.3d 357, 368 n. 9 (3d Cir. 1993) ("a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document") (citation omitted). Here, the Amended Complaint pre-dated the Donohue Certification by one week. Thus, Plaintiff could not have relied upon it in framing the Amended Complaint and had no notice of the Donohue Certification prior to drafting the Amended Complaint. The Donohue Certification does not become "integral to . . . the Complaint" merely because it addresses a central factual issue in the Complaint.

This is a valuable explication of the law under Rule 12(b)(6), although one would have thought that the jurisdictional motion before the Jackson Court would have been filed under Rule 12(b)(1). Further, there is CAFA authority that only the complaint and materials furnished by the plaintiff in connection with the filing of the complaint may be considered on jurisdictional motions. See Lowery v. Alabama Power Co., 2007 U.S. App. LEXIS 8289 (11th Cir. 2007), and our posts of May 10 and 13, 2007.

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