An Exhibit to a motion dismiss lives a sad life. It is attached without fanfare, so as not to draw attention. It is mentioned, if at all, with a footnote saying that we can all see exactly what it is, and all know what its about just by looking at it. It is a book that can be judged by its cover, and the less said about it, the better.
That said, although attaching an exhibit that is. allegedly "integral to the claim" and/or subject to judicial notice is commonplace, decisions actually deciding the issue are rare. This can be seen in today's Last Month's decision in Bloomsbox.com, LLC v. Userway, Inc., C.A. No. 24-844-RGA (D. Del. Feb. 13, 2025).
The case there involved various contract, fraud, and false advertising claims based on claims on the defendant's website. Defendant's motion to dismiss attached 5 exhibits:
- A Copy of the terms of use from their website
- An Answer the plaintiff had filed in a related suit
- 2 Screenshots from the offending website dates the day the motion to dismiss was filed
- A document that purported to be a "legal action guide" referenced in the complaint
In opposing the complaint, the plaintiff conceded that the terms of use and the answer from the other matter were authentic. As to the remainder, plaintiff simply said they "cannot accept the authenticity of the remaining attachments at this time."
Judge Fallon, in a fun twist, actually on whether the disputed exhibits could be considered at this stage:
The court declines to consider the remaining exhibits because Plaintiff challenges their authenticity. . . The complaint contains quotations and captures of Defendant's website from various dates predating the initiation of this lawsuit on July 19, 2024. Defendant offers no legal basis to support the court's consideration of more recent website content that was not included in the complaint.
Exhibit D purports to be a Legal Action Guide that Defendant prepared for Plaintiff in response to litigation brought against Plaintiff. The complaint alleges that Defendant opened a "ticket" and sent Plaintiff a Legal Action Guide after Plaintiff purchased an annual subscription to obtain legal support on December 11, 2023. The complaint further alleges that Defendant informed Plaintiff it had "closed" the case on December 15, 2023. It is not clear from these averments that the December 22, 2023 Legal Action Guide attached as Exhibit D to the motion to dismiss is the same version described in the complaint. Thus, the court declines to consider the contested document at the pleading stage
Id.at 5-6.
It's not clear from the opinion how much the contested date issues affected the analysis. It appears from a footnote that neither party turned up any terribly on point cases about the standard for determining whether an exhibit is indisputably authentic:
Defendant suggests that Plaintiff is required
to offer a "particularized reason to suspect the materials are faulty or altered," and the court may consider website screenshots "if they are integral to the claims and their authenticity is not genuinely disputed." Defendant cites US. Express Lines, Ltd v. Higgins in support of this assertion, but this case reiterates the general proposition that the court may consider "a document integral to or explicitly relied upon in the complaint" without converting the motion to dismiss into a motion for summary judgment. Higgins offers no commentary on the authenticity requirements for documents outside the pleadings at this stage of the case. The District of New Jersey's rejection of an authenticity challenge in Hughes v. Kolaras is inapposite. There, the plaintiff challenged the authenticity of a contract even though her signature appeared on it. Id. Defendant cites no authority supporting its position that the authenticity of a website screen grab is comparable to a signed contract.
Id. at 5 n.3 (internal citations omitted).
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