Doe v. Trustees of Dartmouth College

Filing 30

ORDER granting 16 Motion to Strike. The Clerk is directed to remove Exhibit A (doc. no. 14-2) and Exhibit E (doc. no. 14-6) from the docket. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

John Doe
v.

Civil No. 18-cv-40-LM
Opinion No. 2018 DNH 090

Trustees of Dartmouth College
O R D E R
Before the court is plaintiff John Doe’s motion to strike
(doc. no. 16), in which he asks the court to strike two exhibits
attached to the motion to dismiss filed by defendant Trustees of
Dartmouth College (“Dartmouth”).

The first, Exhibit A, is a

532-page investigative report created as part of the underlying
disciplinary proceedings.

The second, Exhibit E, is a two-page

summary of the disciplinary investigator’s findings.

Plaintiff

argues that it would be inappropriate for the court to consider
the exhibits given the procedural posture of a Rule 12(b)(6)
motion to dismiss.

Dartmouth objects and asserts that the court

may consider the documents because they are referenced in and
central to plaintiff’s complaint.

For the following reasons,

plaintiff’s motion is granted.
It is well-established that on a motion to dismiss, a court
may not normally “consider any documents that are outside of the
complaint, or not expressly incorporated therein, unless the
motion is converted into one for summary judgment.”

Alternative

Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001).

Instead, “a court must accept as true all the

factual allegations in the complaint and construe all reasonable
inferences in favor of the plaintiffs.”

Id.

In submitting these exhibits, Dartmouth attempts to rely on
the narrow exception to this rule “for documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to plaintiffs'
claim; [and] for documents sufficiently referred to in the
complaint.”

Id.

That is, “[w]hen the complaint relies upon a

document, whose authenticity is not challenged, such a document
merges into the pleadings and the court may properly consider it
under a Rule 12(b)(6) motion to dismiss.”
quotation marks omitted).

Id. (internal

The exception is often invoked in

cases where the parties’ dispute is premised on a particular
contract or agreement.

See, e.g., Beddall v. State Street Bank

& Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (trust agreement);
Julius v. Wells Fargo Bank, N.A., No. 16-cv-516-JL, 2017 WL
1592379, at *2 n.5 (D.N.H. Apr. 28, 2017) (mortgage agreement
and note).

In such cases, “the court's inquiry into the

viability of [the] allegations should not be hamstrung simply
because the plaintiff fails to append to the complaint the very
document upon which by her own admission the allegations rest.”
Beddall, 137 F.3d at 17.
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This is not such a case, however.

Dartmouth does not

submit these exhibits merely to, for example, clarify the
content of a particular document that plaintiff references in
his complaint.

See, e.g., id. at 16-17.

Rather, Dartmouth uses

the exhibits to challenge or supplement plaintiff’s allegations,
see doc. no. 14-1 at 2, 5, 11, and it submits the full
investigative report to demonstrate the “thoroughness of the
investigation, the investigator’s detailed findings, and the
substantial evidence on which those findings were based.”
no. 23 at 6.

Doc.

Put simply, “[t]his is clearly impermissible.”

Douglass v. Penn Hills Borough, No. 07-685, 2007 WL 2907891, at
*4 (W.D. Pa. Oct. 2, 2007) (in excessive-force suit, declining
to consider police investigation reports in order to “contradict
the allegations of the” complaint); accord Doe v. Case W.
Reserve Univ., No. 1:17CV414, 2017 WL 3840418, at *5 n.5 (N.D.
Ohio Sept. 1, 2017) (in suit challenging university disciplinary
process, declining to consider documents filed by university to
prove that it complied with its sexual misconduct policy and to
contradict the plaintiff’s allegations).
Therefore, plaintiff is entitled to the requested relief,
and the court will not consider the two exhibits, or any
argument based on such exhibits, in analyzing Dartmouth’s motion
to dismiss.

See Alternative Energy, Inc., 267 F.3d at 33.

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CONCLUSION
Accordingly, plaintiff’s motion to strike (doc. no. 16) is
granted.

The Clerk is directed to remove Exhibit A (doc. no.

14-2) and Exhibit E (doc. no. 14-6) from the docket.

Plaintiff

shall file his objection to the motion to dismiss within 14 days
from the issuance of this order.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
May 2, 2018
cc:

Counsel of Record

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