Legal Memorandum: Motion to Dismiss under Rule 12(b)(6)

Issue: Under federal law, may assertions made by defendant outside the complaint be considered on a motion to dismiss under rule 12(b)(6)?

Area of Law: Litigation & Procedure
Keywords: Motion to dismiss; Factual assertions; Matters outside of the complaint
Jurisdiction: Federal, New Mexico
Cited Cases: 595 F.3d 1120
Cited Statutes: Rule 12(b)(6)
Date: 03/01/2015

When a defendant makes factual assertions that are not contained in the complaint, such statements cannot be considered in determining a Rule 12(b)(6) motion.  As explained in S.E.C. v. Goldstone, 952 F. Supp. 2d 1060 (D.N.M. 2013):

Generally, the sufficiency of a complaint must rest on its contents alone.  See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010); Gossett v. Barnhart, 139 F. App’x 24, 24 (10th Cir. 2005)(unpublished) (“In ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint.”). Emphasizing this point, the Tenth Circuit, in Carter v. Daniels, 91 F. App’x 83 (10th Cir. 2004)(unpublished), stated: “When ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiff’s complaint.  The district court must determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.”  91 F. App’x at 85.


Id. at 1190-91.


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