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7th Circuit Holds that Plaintiff May Present Facts Outside Complaint in Opposition to 12(b)(6) Motion

October 22, 2010

Today, the 7th Circuit issued a decision in Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143 (7th Cir. 2010), Case No. 09-3753, which provides additional guidance on what types of arguments a plaintiff may make in opposition to a motion to dismiss under Fed. R. Civ. P. 12(b)(6). In particular, the Court's opinion addressed whether a plaintiff may supplement her complaint with facts that she did not include in her complaint when opposing such a motion.

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The plaintiff in Reynolds asserted that two individuals induced her to become intoxicated in a bar and attempted to take her back to their apartment "for sexual exploitation." The plaintiff managed to escape, but was injured when she was struck by a car. She brought an action against the individuals and the bar, with the claim against the bar being brought under the Illinois Dramshop Act. The bar moved to dismiss the action for failing to state a claim, the trial court granted that motion, and the plaintiff appealed. While the appeal was pending, the plaintiff continued her action against the other defendants and, at one point, the district court held an evidentiary hearing in which the plaintiff provided a more detailed account of the events in question.

On appeal, the plaintiff attempted to argue facts that were not in her complaint based on her testimony at an evidentiary hearing held after the district court had already dismissed her complaint against the bar. The Court noted that its decision over whether to allow the plaintiff to argue these facts "is crucial to the outcome of her appeal" and concluded that it could look to these facts.

Prior to Iqbal and Twombly, it was clear that "a plaintiff [was] free on appeal to give us an unsubstantiated version of the events, provided it is consistent with the complaint, to show that the complaint should not have been dismissed." The question now is whether Iqbal and Twombly narrowed the pleading standard such that this after-the-fact hypothesis of facts is no longer permissible.

We conclude that the Supreme Court's recent decisions, while raising the bar for what must be included in the complaint in the first instance, did not eliminate the plaintiff's opportunity to suggest facts outside the pleading, including on appeal, showing that a complaint should not be dismissed. Therefore, although the plaintiff is required to plead more than bare legal conclusions to survive a motion to dismiss, once the plaintiff pleads sufficient factual material to state a plausible claim—that is, sufficient to put the defendant on notice of a plausible claim against it—nothing in Iqbal or Twombly precludes the plaintiff from later suggesting to the court a set of facts, consistent with the well-pleaded complaint, that shows that the complaint should not be dismissed.

The Court went on to reverse the district court's decision.

Lessons:

In federal court, a plaintiff can argue facts that are consistent with the well-pleaded complaint, even if they are not in the complaint, in order to argue that she has stated a claim.

Brad A. Catlin
Price Waicukauski & Riley, LLC
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TAG 7th Circuit, Iqbal, Pleading, Supplemental Facts, Twombly

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7th Circuit Holds that Plaintiff May Present Facts Outside Complaint in Opposition to 12(b)(6) Motion

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