Your Motion to Dismiss in Utah Is Not Limited to the Allegations in the Complaint

Normally, in considering a motion made under Rule 12(b)(6), the court accepts the plaintiff’s allegations as true, drawing all reasonable inferences in plaintiff’s favor. See Russell v. Standard Corp., 898 P.2d 263, 264 (Utah 1995). Utah courts, however, insist that facts be plead– not conjecture, or speculation.  “[T]he sufficiency of [plaintiffs’] pleadings ‘must be determined by the facts pleaded rather than the conclusions stated.’” Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶60, 70 P.3d 17 (quotations omitted).

It is also clear that in considering a motion made under Rule 12(b)(6), “[t]he court is not bound by a complaint’s legal conclusions, deductions and opinions couched as facts.” In re FX Energy, Inc. Securities Litigation, 2009 WL 1812828 (D. Utah) (slip copy) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)).  Moreover, the court is not “required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the Court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9^th Cir. 2009); see In re FX Energy, 2009 WL 1812828 at *6 (same); Rapoport v. Asia Electronics Holding Co., 88 F.Supp.2d 179, 184 (S.D.N.Y. 2000) (same).

If you find that the plaintiff’s complaint does not include all of the facts necessary to support your motion to dismiss, there are circumstances which allow you to attach the supporting documents and still retain the motion under 12(b)(6).  If “a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”  Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶13, 104 P.3d 1226 (citation omitted).  Also, “[a] court shall take judicial notice if requested by a party and supplied with the necessary information.”  Rule 201(d), Utah Rules of Evidence.  Moreover, “[t]he rules are clear that documents attached to a complaint are incorporated into the pleadings for purposes of judicial notice and are fair game for [the]court to consider in addition to the complaint’s averments.” Id. at ¶10.

Feel free to think outside of the complaint to find the facts necessary to make a motion to dismiss.

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