Commercial Litigation and Arbitration

Materials Appropriately Considered on 12(b)(2) Motion to Dismiss for Lack of Jurisdiction — Effect on Construing Complaint in Plaintiff’s Favor

From Conwill v. Greenberg Traurig, LLP, 2009 U.S. Dist. LEXIS 119214 (E.D. La. Dec. 22, 2009):

Before the Court is a motion to dismiss pursuant to 12(b)(2) of the Federal Rules of Civil Procedure***.

The plaintiff bears the burden of establishing the Court's jurisdiction over a defendant, by making a prima facie case, if the Court rules without conducting an evidentiary hearing. Johnston v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). "'[O]n a motion to dismiss for lack of jurisdiction, uncontroverted allegations in the plaintiff's complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case for personal jurisdiction exists.'" Id. (quoting D.J. Invs., Inc. v. Metseler Motorcycle Tire Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985)).

[Footnote 16] To help it resolve the jurisdictional issue, a court "may receive interrogatories, depositions or any combination of the recognized methods of discovery . . . The court has discretion as to the type and amount of discovery to allow. But even if the court receives discovery materials, unless there is a full and fair hearing, it should not act as a fact finder and must construe all disputed facts in the plaintiff's favor and consider them along with the undisputed facts." Walk Haydel & Associates, Inc. v. Coastal Power Production Co., 517 F.3d 235, 241 (5th Cir. 2008)(internal quotations and citations omitted). In accordance with this district's RICO standing order, *** the plaintiff filed a RICO case statement stating the facts on which he relied to initiate his RICO action. . . . . The Court notes that when considering a Rule 12(b)(6) motion, courts routinely consider the RICO case statement alongside the complaint. See, e.g., Tal v. Hogan, 453 F.3d 1244, 1263 n. 18 (10th Cir. 2006)("When evaluating the sufficiency of pleadings under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we may consider the allegations made in a plaintiff's RICO Case Statement in conjunction with the complaint."); Int'l Fire and Safety, Inc. v. HC Services, Inc., 2006 WL 2483336 at *2(S.D. Miss. Aug. 28, 2006)("In reviewing the RICO Statement in conjunction with the Complaint, the court concludes that the plaintiff has sufficiently pled its claim of fraud and fraudulent misrepresentation with the required particularity to defeat a motion to dismiss."). Therefore, when considering the defendant's motion to dismiss pursuant to Rule 12(b)(6) [12(b)(2)?], the Court will consider the allegations in the plaintiff's RICO statement.

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