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GAVIN v. AT&T CORP.

United States District Court, N.D. Illinois, Eastern Division


September 29, 2004.

LILA T. GAVIN, Plaintiff,
v.
AT&T CORP. and GEORGESON SHAREHOLDER COMMUNICATIONS, INC., Defendants.

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court are defendants' motions to dismiss the Second Amended Complaint. We presume familiarity with the background facts and procedural history, which are set out in detail in our order of November 26, 2003.

In support of their motions to dismiss, defendants have attached several pieces of evidentiary material, consideration of which we believe may materially advance the litigation. These items include: a June 1998 US West proxy statement; a June 15, 1998 notice sent by MediaOne to its shareholders regarding exchanging their US West shares for shares of MediaOne; an August 1999 MediaOne proxy statement; a June 15, 2000 notice sent by AT&T to MediaOne shareholders (including those, like Gavin, still holding unexchanged US West shares) regarding exchanging their shares for AT&T shares; and an August 1, 2000 notice sent by AT&T to MediaOne and US West shareholders that included instructions regarding the share exchange process.

  As a general rule, when reviewing a motion to dismiss, the court cannot consider material outside the complaint without treating the motion as one for summary judgment. See Fed.R.Civ.P. 12(b). Defendants, however, urge that the court may consider all of their attachments because they are either "matters of which the court may take judicial notice (including documents filed with the SEC)" or "documents central to the complaint." (See Georgeson Mot., p. 2, n. 2.) We disagree. As to defendants' first contention, it is true that on a motion dismiss the court may consider evidence of which it can take judicial notice, and that includes SEC filings. See Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000) ("In ruling on a 12(b)(6) motion, a district court may take judicial notice of matters of public record without converting the 12(b)(6) motion into a motion for summary judgment.") However, of the items listed above, only the two proxy statements fall into the category of public records. With regard to defendants' assertion that we may consider matters "central to complaint," that only states one half of the relevant inquiry: "[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim." Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (emphasis added). Here, defendants' submissions appear to be "central to the complaint," but not one is expressly referenced therein, and therefore they are beyond the scope of the pleadings. Accordingly, we will convert defendants' motions to dismiss into motions for summary judgment.

  But before doing so, we will give the parties until October 27, 2004 to supplement their briefs with evidence, if any, relevant to the materials defendants have attached to their motions. See Fed.R.Civ.P 12(b); Chicago Bd. of Ed. v. Substance, Inc., 354 F.3d 624, 627 (7th Cir. 2003) ("To convert [a] motion to dismiss into a motion for summary judgment, the judge would have had to notify [the parties] of his intention and give [them] an opportunity to present evidence that would create a triable issue.").

20040929

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