Looking Beyond the Pleadings for Motions to Dismiss: Part 2 of 3

As discussed in the previous blog post regarding evidence admissible for motions to dismiss, courts can only consider limited types of evidence when deciding motions to dismiss.

Public Records and Judicially Noticed Matters

Public records, and subjects of judicial notice, are other forms of evidence defendants can properly rely upon on a motion to dismiss. Typically, all that is required is attaching the record since authenticity is not generally an issue.

Matters of public record, and subjects of judicial notice, include:

  • judicially noticed filings from a previous juvenile court proceeding;
  • a paternity case court file where a litigant sought a permanent injunction to prevent the state from seizing funds from his Social Security disability benefits;
  • a prior Court of Appeals opinion for a claim under the Nebraska Claims for Wrongful Conviction and Imprisonment Act;
  • the date on which an estate entered probate;
  • decisions rendered by government agencies;
  • documents authored by government agencies;
  • deeds of trust;
  • current and superseded case law, regulations, ordinances, and statutes;
  • legislative history; and
  • in a claim premised on wrongful registration, other lawsuits the plaintiff brought against a corporate entity.

Other blog posts in this series discussed the admissibility of certain documents, plaintiffs’ concessions, and evidence in support of certain defenses in motions to dismiss. As always, individuals should consult jurisdictionally-relevant decisions to determine the precise types of held to be admissible in the jurisdiction in which the complaint was filed.

2019-01-31T15:25:36+00:00January 9th, 2019|Nebraska Litigation & Trial Advisor|

About the Lead Author:

Cathy Trent-Vilim
Cathy Trent-Vilim is a partner of Lamson, Dugan & Murray. Throughout her years of practice, Ms. Trent-Vilim has worked on a wide range of commercial and insurance matters, including personal injury insurance defense, coverage claims, contract claims, crop insurance claims, legal malpractice, appellate practice and complex commercial litigation. She has tried cases in the Nebraska county, district and federal courts, in arbitration proceedings, and has successfully argued cases before the Nebraska Court of Appeals and Supreme Court.

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