Commercial Litigation and Arbitration

Documents Beyond Complaint That May Be Considered on 12(b)(6) Motion to Dismiss and for What Purpose — Utility of Affidavit or Declaration

Biro v. Condé Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012):

When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations on the face of the pleading. "Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). In defamation actions, this typically includes the documents containing the allegedly defamatory statements. See Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 414 n.52 (S.D.N.Y. 2009) (citing Gargiulo v. Forster & Garbus Esqs., 651 F. Supp. 2d 188, 190 (S.D.N.Y. 2009) and Riel v. Morgan Stanley, No. 06 Civ. 524, 2007 WL 541955, at *4, *8 (S.D.N.Y. Feb. 16, 2007)).

The Court may also consider documents subject to judicial notice. See Kramer v. Time Warner Inc., 937 F.2d 767, 773-74 (2d Cir. 1991). The Second Circuit has explained that, on a motion to dismiss, "[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Global Network Communications, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)); cf. Roth, 489 F.3d at 509 (noting that "where public records that are integral to a fraud complaint are not attached to it, the court, in considering a Rule 12(b)(6) motion, is permitted to take judicial notice of those records . . . in order to determine what statements they contained but . . . not for the truth of the matters asserted." (internal citations, quotation marks and brackets omitted)). Such documents may be authenticated with evidence "sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). This can include an affidavit or declaration by a witness with knowledge of what the item is, as well as from the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b).***

Several of the allegedly defamatory statements concern past lawsuits involving Biro. Defendants submit court records from these lawsuits — all of which took place in Canada — to demonstrate that the statements are a "fair and true report" of those cases, asking the Court to take judicial notice of these proceedings. As previously noted, the Court may take judicial notice of these records only "to establish the fact of such litigation and related filings," but not "for the truth of the matter asserted" in the documents. Global Network, 458 F.3d at 157. Thus, the Court will consider the allegations and statements in the court records in order to determine whether the Article provides a "fair and true" report of those allegations and statements, but will not consider the documents to be evidence of any of the facts stated therein. See Fuji Photo Film U.S.A., 669 F. Supp. 2d at 414-15 (taking judicial notice of complaint filed in related matter to assess whether the allegedly defamatory statement was substantially truthful in summarizing the allegations of that complaint).

Footnote 12. Biro argues that the Court may not take judicial notice of these records because they have not been sufficiently authenticated. The Court disagrees. Defendants submitted declarations from David Grann attesting to the fact that he obtained the documents submitted from the Palais de Justice in Montreal, directly from an attorney who worked on the cases, and from a database of court records maintained by the Court of Quebec, Civil Division. (Declaration of David Grann, Dkt. No. 22 ("Grann. Dec.") ¶¶ 2-4; Rebuttal Declaration of David Grann, Dkt. No. 31 ("Grann Rebuttal Dec.") ¶¶ 2.) This, combined with the documents' appearance, is "sufficient to support a finding that the item[s are] what the proponent claims [they are]." Fed. R. Evid. 901(a). Biro does not raise any argument or point to any evidence casting doubt on the authenticity of these records.

Biro is also incorrect in contending that Grann's declarations may not be considered on a motion to dismiss. Although a court may not consider substantive affidavits or other extrinsic evidence on a motion to dismiss under Rule 12(b)(6), courts routinely accept declarations submitted solely to authenticate documents that the court may consider on such a motion. See, e.g., Amy Axelrod, Inc. v. Simon & Schuster, Inc., No. 07 Civ. 891, 2007 WL 2412257, at *3 n.4 (S.D.N.Y. Aug. 27, 2007) (accepting affidavit submitted to authenticate agreements that were integral to the complaint).

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