BJC Health System, Appellant, v. Columbia Casualty Company, doing business as CNA HealthPro, Appellee.
No. 03-1118
United States Court of Appeals, Eighth Circuit
November 3, 2003
Submitted: September 12, 2003
United States Court of Appeals FOR THE EIGHTH CIRCUIT
WOLLMAN, Circuit Judge.
This appeal follows the district court‘s dismissal of plaintiff-appellant BJC Health System‘s (“BJC“) amended complaint for failure to state a claim upon which relief could be granted. We reverse and remand.
I.
BJC is the sole shareholder of ATG Assurance Company Limited (“ATG“). Columbia Casualty Company, doing business as CNA HealthPro (“Columbia“), provided reinsurance to ATG for policy years 1998 and 1999 at a fixed premium. ATG
BJC‘s complaint contends that Columbia was obligated to fix ATG‘s reinsurance premium for policy year 2000 because of a separate premium-guarantee contract between BJC and Columbia. BJC alleges that Columbia breached the premium guarantee and that as a result BJC was required to pay ATG‘s more costly policy year 2000 reinsurance premiums.
Columbia moved for dismissal of BJC‘s complaint under
II.
BJC argues that the district court erred when it referred to the documents attached to the motion to dismiss. The documents, BJC maintains, are “matters outside the pleading,” requiring the motion to dismiss to be treated as a motion for summary judgment. See
Columbia responds that because the documents are necessarily embraced by the complaint, they are not matters outside the pleading, citing our decisions that state that a plaintiff may not avoid an otherwise proper motion to dismiss by failing to attach to the complaint documents upon which it relies. See, e.g., Silver v. H&R Block, Inc., 105 F.3d 394, 397 (8th Cir. 1997) (holding that the statements in question could have properly been considered as a part of the motion to dismiss because they were the sole basis for the complaint and their content was not disputed). Alternatively, Columbia argues that BJC had notice of the conversion into a motion for summary judgment and should have provided the district court with evidence supporting its allegations.
BJC replies that it should not have been required to engage in a “battle of the documents” so early in the litigation, noting that the existence of a contract can be proved through documentary as well as other types of evidence. Rather, BJC maintains it should have been given the opportunity to discover additional evidence supporting its allegations.
Rule 12(b) is not permissive. “[T]he motion shall be treated as one for summary judgment . . . .” Id. (emphasis added). “Most courts . . . view ‘matters outside the pleading’ as including any written or oral evidence in support of or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings.” Gibb v. Scott, 958 F.2d 814, 816 (8th Cir. 1992) (quoting Wright & Miller, Federal Practice and Procedure § 1366). This interpretation of the rule is “appropriate in light of our prior decisions indicating a 12(b)(6) motion will succeed or fail based upon the allegations contained in the
We conclude that the three documents Columbia provided to the district court constitute matters outside the pleading. The documents may or may not be the only legal agreements relevant to BJC‘s alleged contract with Columbia, and their significance is disputed. Furthermore, the documents were provided “in opposition to the pleading.” For what purpose would Columbia have provided the documents to the district court, other than to discredit and contradict BJC‘s allegations? Columbia‘s contention that the documents were necessarily embraced by the complaint is, we believe, insufficient to save the district court‘s order. It is true that the plaintiff must supply any documents upon which its complaint relies, and if the plaintiff does not provide such documents the defendant is free to do so. Here, however, BJC alleged the existence of a contract, not a specific document, and the documents provided by Columbia were neither undisputed nor the sole basis for BJC‘s complaint.
Our determination that the materials are matters outside the pleading does not complete our inquiry, however, for it remains to decide whether the district court‘s consideration of the documents constituted harmless error. Gibb, 958 F.2d at 816. Consideration of matters outside the pleading is harmless where “the nonmoving party had an adequate opportunity to respond to the motion and material facts were neither disputed nor missing from the record.” Id. at 816; see also Country Club Estates, L.L.C. v. Town of Loma Linda, 213 F.3d 1001, 1005 (8th Cir. 2000) (holding that error is harmless if plaintiff could not possibly provide countervailing evidence or if plaintiff is put on constructive notice that the district court will consider materials outside the pleading).
Here, BJC was never given notice nor an opportunity to discover or to provide additional evidence. See Gibb, 958 F.2d at 816-17. Additionally, the September 21, 1998, quotation letter provided by Columbia refers to BJC and not just ATG. The parties disagree as to the significance of this reference. The two reinsurance contracts only limit rights “under [these] certificate[s],” which leaves open questions about the parties’ rights (or the rights of anyone else) under any other written or oral contracts or elements thereof. Thus, the district court should have provided BJC an opportunity to submit evidence in support of its allegations.
Columbia argues that BJC‘s complaint was insufficient on its face to state a claim for breach of contract. Columbia maintains that the allegation that “Columbia Casualty contracted with BJC for reinsurance of ATG” at a guaranteed premium and that “Columbia Casualty failed and refused to provide the insurance [sic] for the guaranteed premium” is insufficient to state a claim under Missouri law. According to Columbia, this allegation asserts a conclusion of law and thus fails to satisfy pleading requirements. We disagree.
Under the Federal Rules, it is not necessary to plead every fact with formalistic particularity.
The order of dismissal is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.