12(b)(6), summary judgment, and conflicting video

I think the Fourth Circuit reaches  the right place--further proceedings required. A trial court can consider a video on a 12(b)(6) if "(1) the video is 'integral' to the complaint and its authenticity is not challenged, but (2) only to the extent that the video 'clearly depicts a set of facts contrary to those alleged in the complaint,' or 'blatantly contradicts' the plaintiff’s allegations, rendering the plaintiff’s allegations implausible." The district court should have denied dismissal because the video did not blatantly contradict the allegations in the complaint.

But I think it gets there via two mistakes, sounding in the general problem of conflating 12(b)(6) and summary judgment, especially in civil rights actions: 1) Expanding what the court can look at on 12(b)(6) and 2) conflating 12(b)(6) and summary judgment when dealing with conflicting information.

1) A court on a 12(b)(6) is limited to the allegations within the four corners of the complaint plus documents attached as exhibits. FRCP 10(c), 12(d). Courts have extended that plus to include documents that the complaint mentions or relies on, which makes sense on a rule of completeness--if the complaint refers to something (e.g., a contract or a magazine article), a rule of completeness dictates that the court treat the entire thing as part of the complaint. Otherwise a plaintiff could selectively and inaccurately quote pieces of a broader thing to create a false impression. Courts have further extended this to videos.

The 4th Circuit does not explain what "integral" to the claim means--whether it includes complaints that identify the video as a source or otherwise expressly rely on the video or whether it includes any set of facts describing events for which publicly available video may be found. If video cases are not to subsume 12(b)(6), it should not extend as far as the latter. That is, if the complaint includes factual allegations X, Y, and Z and there happens to be video evidence of those facts that the complaint does not mention, discuss, or rely upon, the video should not be treated as part of the complaint.

The court does not explain which side the case falls. The complaint alleged a bunch of facts; defendant's 12(b)(6) introduced the video, emphasizing that it was "publicly available" and "integral to" and "apparently relied on" in the complaint. Publicly available should not matter (unless it is part of a public record and a subject of judicial notice). And I do not know how the complaint "apparently relie[s]" on the video--either it does or does not. Unfortunately, plaintiff did not object to the court considering the video and used the video to argue it meaning in opposing the motion, effectively waiving the 12(d) argument. The court therefore did not resolve the "not entirely clear" question of whether the video qualifies as integral to this complaint.

2) If the video is part of the complaint, I do not think the "blatantly contradicted" standard should apply. Blatant contradiction comes from Scott v. Harris, where the Court disregarded the plaintiff's deposition testimony of what happened during a high-speed chase (specifically whether he was a threat to persons and property) by watching video of the chase and concluding that the video was capable of one reasonable interpretation. The Court therefore need not accept plaintiff's version of events or draw reasonable inferences for the non-movant plaintiff ("I was driving fast but safely") when his evidence was "blatantly contradicted" by the video whose one true meaning ("he was a threat'") the Court can divine by watching.

Putting aside the correctness of Scott and the idea that the video shows one obvious thing rather than being subject to interpretation, the approach makes some sense on summary judgment. Opposing parties offering competing evidence, stories, and versions of events; the court decides whether the evidence each offers sufficiently conflicts as to show a factual dispute requiring jury resolution. "Blatant contradiction" gets us to the place of the defendant offering the video, the plaintiff offering no evidence (as is his burden of production), leaving no disputed facts requiring jury resolution. I do not agree with the standard, but it is consistent with the inquiry on summary judgment.

But 12(b)(6) is supposed to be different. The court hears one side--what the plaintiff offers; it hears no facts or evidence from the defendant. The court takes everything the plaintiff alleges as true and considers whether the plaintiff can win if everything he says is true. Where the complaint contains adverse allegations or facts, the court can consider those and rule against the plaintiff--we say plaintiff has pleaded herself out of court. Where the complaint includes contradictory allegations, the court need not resolve that conflict or decide which is true; it accepts everything true and decides if the plaintiff loses under either of those sets of facts. Consider Craig v. Rich Township High School. A fired school counsleor alleged that he published his book (the speech for which he was fired) outside of work , but the book (which he attached to the complaint) included content connecting to his counselor job. The court could consider that fact in the Pickering balance on a 12(b)(6) because the facts showing connectedness were in the complaint. The court did not disregard contrary facts; it took all facts as true, some of which showed why the plaintiff lost under controlling law. Or imagine a hypo I use in class--a Black non-attorney brings a race-discrimination claim against the law firm that denied him a job, with allegations that he was told he was not hired because he is not an attorney and because he is Black. The court would not unpack or reconcile the facts; it would take both allegations as true, with one fact (not hired because not an attorney) defeating the claim.

So how should this case have come out? Where (as it seems to have been in this case) there is ambiguity whether the complaint relies on the video, the court should treat it as not having relied and not treat the video as part of the complaint. The court therefore should have either refused to look at the video and denied the 12(b)(6) or converted  to summary judgment; the latter moves allows the court to consider whether the plaintiff's testimony is "blatantly contradicted" by the video as a competing piece of evidence. But if the video is clearly part of the complaint, then the court should review the video and decide if it plausibly shows a violation, without regard to other allegations in the complaint. If the video defeats the claim, we would say the plaintiff pleaded herself out of court by including adverse facts for the court to take as true. Blatant contradiction never comes up, because the plaintiff is on the hook for the effects of all the facts she includes in the complaint.