Judicial Notice of Internet Evidence — Noticing Other Court’s Records on 12(b)(6) Motion Doesn’t Convert It to Motion for Summary Judgment — Res Judicata Affirmative Defense Testable on 12(b)(6)

Busby v. Bank of Am., N.A., 2015 U.S. Dist. LEXIS 44223 (S.D. Ohio April 3, 2015):

Plaintiff alleges that she is the record owner of a residential property at 251 Trumpet Drive, West Carrollton, Ohio, which is her primary home. Id. at PageID 2, ¶¶ 4-5. The Complaint contains a lengthy section labeled Factual Allegations which largely concern a foreclosure action filed by the Reimer Law Firm on behalf of Defendant Bank of America's predecessor in interest and captioned BAC Home Loan Serving L.P. v. Jimmy Busby, et al, on the docket of the Montgomery County Court of Common Pleas as Case No. 2009 CV 10420 (the "Foreclosure Action"). Id. at PageID 4-16, ¶¶ 17-81.

To flesh out the facts surrounding the Foreclosure Action, the Bank of America Defendants cite public records of the Montgomery County Common Pleas Court in the Foreclosure Action. Public records and government documents, including those available from reliable sources [*4]  on the Internet, are subject to judicial notice. United States ex rel Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is permitted to take judicial notice of another court's website. Graham v. Smith, 292 F. Supp. 2d 153, 155, n.2 (D. Me. 2003); Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 (E.D. Mich. 2004).

The Bank of America Defendants bring their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The purpose of that rule is usually to test the formal sufficiency of a complaint, but it can also be used to raise and litigate an affirmative defense, such as qualified immunity, Levin v. Childers, 101 F.3d 44, 48 (6thCir. 1996), or the statute of limitations, Pierce v. County of Oakland, 652 F.2d 671 (6thCir. 1981); Lundblad v. Celeste, 874 F.2d 1097 (6thCir. 1989). Provided that a res judicata defense is based on the pleadings or matters outside of the pleadings which do not require treating the motion as one for summary judgment, there is no good reason why a res judicata defense cannot be considered on a Rule 12(b)(6) motion. A court may consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies without converting the motion into a summary judgment motion. Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6thCir. 2008); Wyser-Pratte Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 560 (6thCir. 2005); Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999). Indeed, the defense of res judicata may be raised sua sponte by a court even though it is usually an affirmative defense. Holloway Construction Co. v. Dept. of Labor, 891 F.2d 1211 (6th Cir. 1989), cited favorably in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

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