Commercial Litigation and Arbitration

12(b)(6): To What Extent May A Court Consider An Expert Report Or Affidavit Annexed To A Complaint In Deciding A Dismissal Motion?

Alix v. McKinsey & Co., 2023 U.S. Dist. LEXIS 145872, at *82-83, 2023 WL 5344892, at *27 (SDNY Aug. 18, 2023):


Finally, [Defendant] McKinsey contends that a joint declaration from three bankruptcy professionals that Alix appended to the Complaint, see ECF No. 177-3 ("Decl."), must be stricken. Defs.' Mem. 94. The Court agrees.21 Although courts may consider materials extrinsic to the complaint — as the Court has done in this case — such materials [*83]  must be incorporated by reference into the complaint or otherwise integral to it. Empire Merchs., 902 F.3d at 139; see Fed. R. Civ. P. 10(c). Affidavits — even when submitted with a complaint — are not "written instruments" that may be considered. Smith v. Hogan, 794 F.3d 249, 254 (2d Cir. 2015); Ong v. Chipotle Mexican Grill, Inc., 294 F. Supp. 3d 199, 223 (S.D.N.Y. 2018). Ong is especially instructive. There, the plaintiff submitted an expert declaration with the complaint. The court refused to consider it on the ground that it "was created long after the events giving rise to [the] litigation and is thus not the type of 'written instrument' falling within the purview of Rule 10(c)." Ong, 294 F. Supp. 3d at 224. The declaration "was drafted for the purpose of this litigation; Plaintiffs therefore could not have relied on its terms while drafting their complaint." Id. (emphasis in original). So too here. As [Plaintiff] Alix himself acknowledges, see Pl.'s Opp'n 95, the expert declaration was plainly drafted for the purpose of litigation. Moreover, the declaration relies on the Complaint, e.g., Decl. ¶¶ 24, 26, not vice versa. Accordingly, the declaration must be and is stricken.

Footnote 21.  The fact that "Defendants did not file a motion to strike or otherwise invoke Rule 12(f)," Pl.'s Opp'n 94, is neither here nor there. Among other things, Rule 12(f) explicitly provides that a court "may act . . . on its own" to "strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f)(1) (emphasis added). That is, the Court would have been on firm ground striking the joint declaration even without a motion.

[Ed. Note:  The key is the penultimate sentence of the text:  "[T]he declaration relies on the Complaint, . . . not vice versa."  In the vice versa scenario, reliance on an expert may be invaluable to sustain a complaint.  See, e.g., E. Ohman J:Or Fonder AB v. Nvidia Corp., No 21-15604, Slip Op. at 19-23, 41-42 (9th Cir. Aug. 25, 2023).]

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