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Standard of Review-Motion to Dismiss
(Beverly, dba PSB v. Network Solutions)

Standard of Review-Motion to Dismiss FRCP 12(b)(6)
(Beverly, dba PSB v. Network Solutions)

I

A FRCP 12(b)(6) motion to dismiss tests the legal sufficiency of the claims stated in the complaint. The complaint must be construed in the light most favorable to plaintiff. See Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir 1980). The court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from these facts. See NL Indus, Inc v. Kaplan, 792 F.2d 896, 898 (9th Cir 1986). Material allegations must be accepted as true no matter how improbable they may seem and without regard to any potential difficulties in proof. See Allison v. California Adult Authority, 419 F.2d 822, 823 (9th 1969). The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice, see Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir 1987), cert denied, 486 U.S. 1040, 100 L. Ed. 2d 616, 108 S. Ct. 2031 (1988), that are conclusory or mere legal conclusions, that are unwarranted deductions of fact or unreasonable inferences, see Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir 1994); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir 1981), cert denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 567 (1981), or that are contradicted by exhibits to the complaint, see Durning v. First Boston Corp, 815 F.2d 1265, 1267 (9th Cir 1987), cert denied, 484 U.S. 944, 108 S. Ct. 330, 98 L. Ed. 2d 358 (1987). Even so, the motion may not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see also Moore v. City of Costa Mesa, 886 F.2d 260, 262 (9th Cir 1989), cert denied, 496 U.S. 906, 110 L. Ed. 2d 269, 110 S. Ct. 2588 (1990).

Generally, the court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. See Hal Roach Studios, Inc v. Richard Feiner and Co, Inc, 896 F.2d 1542, 1555 n.19 (9th Cir 1990). Material which is properly submitted as part of the complaint, however, may be considered. See id. If the complaint alleges the content of documents that are not physically attached to the pleading, the court may consider that content so long as the authenticity of the documents is not questioned by either party. See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir 1994). The court may also take judicial notice of matters that are public record. See Mack v. South Bay Beer Distributors, Inc, 798 F.2d 1279, 1282 (9th Cir 1986).

In the case at bar, Beverly responded to NSI's motion to dismiss with an "ex parte motion for declaratory judgment summary judgment." In his motion, Beverly argues that the court should convert NSI's motion to dismiss to a motion for summary judgment because NSI referenced matters outside of the pleadings. Specifically, Beverly asserts that NSI's reference to the agreement between itself and NSF (the Cooperative Agreement) was beyond the scope of the complaint. Beverly's complaint, however, repeatedly mentions the Cooperative Agreement. See Compl PP VII, XIII, XXI, XXV. Furthermore, Beverly alleges that he is a third party beneficiary to the Cooperative Agreement; a claim that he could not assert without relying on that agreement. Because Beverly referenced the Cooperative Agreement in his complaint and bases at least one of his claims on that agreement, the court need not convert the motion to dismiss to a motion for summary judgment; in any event, doing so would seem to disadvantage Beverly, because the granting of a motion to dismiss is subject to an even more stringent standard than one for summary judgment.
BEVERLY, dba PSB,  v. NETWORK SOLUTIONS, No. C-98-0337-VRW-District Court Orde re Motion to Dismiss
 

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