322 F.R.D. 151
D. Mass.2017Background
- Plaintiffs (Metropolitan and The Commerce) sued chiropractic practices, principals, employees and related parties alleging a scheme to obtain insurance benefits through fraudulent, unnecessary, or fabricated chiropractic billing and claims, asserting RICO, fraud, conspiracy, contract and Chapter 93A claims, among others.
- Defendants include the Law Offices of Jeffrey S. Glassman (GLO), Attorney Jeffrey Glassman, and two former paralegals (Soto and Asenjo); multiple motions to dismiss the Second Amended Complaint were filed by different defendant groups.
- The paralegal defendants and Attorney Glassman attached various exhibits to their Rule 12(b)(6) memoranda: (1) a district-court hearing transcript, (2) excerpts of sworn witness testimony and a summary chart, and (3) portions of Plaintiffs’ expert report; Glassman attached denial letters from the carriers to him.
- Plaintiffs moved to strike all those exhibits as extrinsic materials not properly considered on a motion to dismiss and argued conversion to summary judgment would be improper without discovery; defendants opposed and paralegals cross‑moved to strike complaint allegations that allegedly rely on the exhibits.
- The magistrate judge applied the Rule 12(b)(6) standard and the limited exceptions allowing courts to consider certain extrinsic documents (undisputed-authenticity documents, public records, documents central to claims, or documents sufficiently referred to in the complaint).
- Rulings: the court (1) allowed consideration of the hearing transcript (judicial notice); (2) struck the paralegals’ excerpts of witness testimony and the expert report (not integral, fragmentary, and raising factual disputes inappropriate on 12(b)(6)); (3) denied striking Glassman’s attached denial letters (court treated them as sufficiently referred to in the complaint and, in any event, they did not affect the dismissal analysis); and (4) denied the paralegals’ cross‑motion to strike complaint allegations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may consider exhibits attached to motions to dismiss | Exhibits are extrinsic, not incorporated, and thus must be stricken; considering them converts motion to summary judgment | Some exhibits fall within Rule 12(b)(6) exceptions (judicial notice, documents relied upon, undisputed authenticity) and may be considered | Transcript (Ex.1) may be considered (judicial notice); witness excerpts and expert report (Exs.2–3) struck; Glassman letters may be considered and need not be struck |
| Whether hearing transcript is judicially noticeable | Transcript is extrinsic and should be struck | Proceedings in other courts and statements in open hearings are proper subjects of judicial notice | Allowed: court may take judicial notice of the hearing transcript and consider it |
| Whether partial witness testimony excerpts and expert report are "integral" or sufficiently referred to so court can consider them | Plaintiffs relied on those materials in complaint, so defendants may use them | Fragments are not integral; plaintiff’s characterizations are factual matters that must be accepted at 12(b)(6) stage | Struck: exhibits 2 and 3 not considered on 12(b)(6) because they are fragmentary and raise factual disputes |
| Whether complaint allegations should be stricken if exhibits proving them are excluded | N/A (Plaintiffs sought to strike exhibits) | If court excludes exhibits, paralegals want corresponding complaint allegations struck as unsupported | Denied: paralegals gave no legal basis; plaintiffs’ complaint gave sufficient notice about alleged fraudulent bills |
Key Cases Cited
- Cooperman v. Individual, Inc., 171 F.3d 43 (1st Cir.) (standard for accepting well‑pleaded facts on motion to dismiss)
- Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30 (1st Cir.) (exceptions to excluding extrinsic documents on Rule 12(b)(6))
- Watterson v. Page, 987 F.2d 1 (1st Cir.) (documents that may be considered on motion to dismiss)
- Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24 (1st Cir.) (documents integral to or explicitly relied upon may be considered)
- Shaw v. Digital Equip. Corp., 82 F.3d 1194 (1st Cir.) (same principle on documents relied upon)
- Beddall v. State Street Bank & Trust Co., 137 F.3d 12 (1st Cir.) (policy rationale for considering integral documents)
- Chongris v. Board of Appeals, 811 F.2d 36 (1st Cir.) (courts need not accept bald assertions on a motion to dismiss)
- Kowalski v. Gagne, 914 F.2d 299 (1st Cir.) (courts may take judicial notice of proceedings in other courts)
- Berkshire‑Cranwell Ltd. P’ship v. Tokio Marine & Nichido Fire Ins. Co., Ltd., 874 F. Supp. 2d 41 (D. Mass.) (taking judicial notice of statements made during hearings)