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Crumpled, discarded motions to dismiss
Steve Johnson, Unsplash

Judge Burke issued an interesting R&R denying a motion to dismiss this week, in Parus Holdings Inc. v. Amazon.com, Inc., C.A. No. 23-190-GBW-CJB (D. Del.).

The defendant moved to dismiss based on a license defense, attaching the license. The plaintiff responded, itself attaching and relying on the license, as well as on other materials, such as a declaration from its CEO.

The Court rejected the motion—not because the defendant isn't licensed, but because it cannot even reach that issue on a motion to dismiss:

In resolving motions to dismiss under Rule 12(b)(6), . . . courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents integral to or explicitly relied upon in the complaint . . . . The exception to considering materials beyond the complaint in resolving a Rule 12(b)(6) motion to dismiss is narrow, and "[i]t is not intended to grant litigants license to ignore the distinction between motions to dismiss and motions for summary judgment." Midwest Innovative Prods., LLC v. Kinamor, Inc., No. 16 CV 11005, 2017 WL 2362571, at *2 (N.D. Ill. May 31, 2017) (internal quotation marks and citation omitted). Because the 2021 Settlement Agreement at issue is not central to Plaintiff's claims, the Court cannot consider it (nor any of the other documents attached as exhibits to the briefing discussed above) in ruling on Defendant's Motion. . . . While the Court could exercise its discretion to convert the Motion into a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d), no one has requested this, and the Court declines to do so at this early stage of the case. See, e.g., Ahn v. Cigna Health & Life Ins. Co., Civ. No. 19-07141 (KM)(JBC), 2019 WL 5304628, at *3-4 (D.N.J. Oct. 21, 2019) (noting that it is the "rare case" in which a court will consider summary judgment in advance of discovery pursuant to Rule 12(d)).
. . .
Defendant's affirmative license defense is not evident from the face of Plaintiff's Complaint. Therefore, dismissal of the Complaint is not appropriate, and the Court recommends that the Motion be DENIED. Disputes relating to the effect of the 2021 Settlement Agreement may be re-raised at the appropriate time.

Parus Holdings Inc. v. Amazon.com, Inc., C.A. No. 23-190-GBW-CJB, D.I. 71 (D. Del. Jan. 31, 2024).

This is essentially a sua sponte dismissal of the argument, even after the plaintiff responded on the merits without raising the document issue. It goes to show how seriously the Court takes the often-overlooked limitations on what materials it can consider in a motion to dismiss!

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