Sixth Circuit Permits Consideration of Legislative Record without Converting a 12(c) Motion to a Summary Judgment Motion

Per Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. May 20, 2008)

Plaintiffs-Appellants argue that by considering the legislative record attached to Defendants' motion the district judge improperly converted a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Federal Rule of Civil Procedure 10(c) provides that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” We have previously held that a district court converts a Rule 12(c) motion into a Rule 56 motion when the district judge merely “fail[s] to exclude presented outside evidence.” Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir.2006). Thus the question before us is whether the legislative record comes within the scope of Rule 10(c) or is “outside evidence” under Max Arnold.

In the instant case, we hold that the district court did not convert Defendants' Rule 12(c) motion into a Rule 56 motion. Certainly, the district judge accepted as evidence of secondary effects the legislative record, which Defendants attached to their motion for judgment on the pleadings. Were the legislative record to constitute a document outside the pleadings, then the district judge would have converted a motion for judgment on the pleadings into a motion for summary judgment. The legislative record did not constitute such an external document, however. Sensations attached a copy of the Ordinance to its complaint as Exhibit A; under Rule 10(c), therefore, we treat the Ordinance as part of the pleadings. The Ordinance, in turn, states that “[t]he City hereby adopts and incorporates herein its stated findings and legislative record related to the adverse secondary effects of sexually oriented businesses, including the judicial opinions and reports related to such secondary effects.” By attaching the Ordinance to the complaint, therefore, Sensations also incorporated the legislative record into the pleadings. Because Sensations had notice via its own actions that the legislative record formed part of the pleadings, the district judge acted fairly when he considered the Ordinance and legislative record as part of the pleadings. . . .