Incorporation by Reference
The doctrine that lets a court consider a document outside the complaint at the motion-to-dismiss stage because the complaint attached it, quoted it, or relies on it. It cuts both ways.
What It Is
On a Rule 12(b)(6) motion, the court is normally limited to the four corners of the complaint. Incorporation by reference is the exception. Under Rule 10(c), a written instrument attached to a pleading is part of the pleading for all purposes. Courts extend the same treatment to documents the complaint refers to that are central to the claim, and to matters subject to judicial notice such as court records.
In a Section 1983 case, the documents most often incorporated are the arrest report, the probable-cause affidavit, the charging document, and, increasingly, body-camera video.
Why It Cuts Both Ways
Incorporating a document lets you point the court to it. It also lets the defendants point the court to every other part of it.
If your complaint says “as the body-camera video shows, Plaintiff was not resisting,” and you attach the video, the court may watch the whole video. If the video is ambiguous, or if it shows something the defense can characterize as resistance, the court may credit the video over your allegations. Several circuits hold that when an incorporated document contradicts the complaint, the document controls.
The same is true of the arrest report. Attach it to show the officer’s stated reason for arrest, and the court may also read the officer’s account of your conduct.
The Video Problem
Defendants often attach body-camera video to their motion to dismiss even when the complaint did not. Whether the court may consider it depends on whether the complaint referenced the video and relies on it. If your complaint describes what the video shows, the defense will argue you incorporated it. Courts differ on how far this goes, and on whether video can ever be “unambiguous” enough to override allegations at the pleading stage.
The Supreme Court’s decision in Scott v. Harris, which allowed a court to disregard a party’s version of events contradicted by video, arose at summary judgment, not on a motion to dismiss. Defendants cite it anyway.
Before You Attach or Quote Anything
- Review the entire document or recording, not just the favorable part.
- List every statement or scene the defense could use against you.
- Decide whether the benefit of incorporating outweighs the risk that the whole document controls.
- If you incorporate, describe only what the recording resolves clearly and continuously. Mark what it does not show.
Read Should You Attach the Video to Your Complaint? for the full analysis.
Related Doctrine
If the court considers material that is not incorporated and not subject to judicial notice, the motion must be converted to summary judgment under Rule 12(d), and you must be given a chance to present evidence. See Rule 12(d) conversion.
Key Authority
- Fed. R. Civ. P. 10(c) — exhibits to a pleading are part of the pleading
- Fed. R. Civ. P. 12(d) — conversion when matters outside the pleadings are considered
- Scott v. Harris, 550 U.S. 372 (2007) — video at summary judgment