United States District Court, N.D. Illinois, Eastern Division
September 29, 2004.
LILA T. GAVIN, Plaintiff,
AT&T CORP. and GEORGESON SHAREHOLDER COMMUNICATIONS, INC., Defendants.
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
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
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