Thank FRCP Rule 10 for Incorporation by Reference
One often overlooked, but widely used and awesome, provision of the Federal Rules of Civil Procedure is the little subsection that allows incorporation or adoption by reference. Thanks to FRCP Rule 10, subsection (c), we lawyers don't have
to pay someone to retype out whole contracts or other documentary evidence for use in complaints or other pleadings.
Incorporation by reference allows whole contracts to be made part of a pleading simply by attaching it to one pleading in the litigation, then basically just writing that you're "incorporating [said document] by reference." Doing so effectively means that everything in that document or exhibit is part of the pleading as if fully reproduced in the pleading.
Rule 10 Refresher
FRCP Rule 10, in its entirety, reads as follows:
Rule 10. Form of Pleadings
(a) Caption; Names of Parties. Every pleading must have a caption with the court's name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.
(b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence-and each defense other than a denial-must be stated in a separate count or defense.
(c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.
Incorporation by Reference
When filing a complaint, Rule 10(c) allows exhibits to be attached to a complaint (or other pleading) that are referenced in the complaint (or other pleading). Doing so makes the exhibit part of the pleading without the need to have the entire document reproduced within the it.
When filing a 12(b)(6) motion in response to a complaint, Rule 10(c) allows a defendant to attach an exhibit, such as a contract, that is referenced in a complaint but not attached. Further, Rule 10 allows a court to consider those incorporated exhibits on a motion to dismiss, and if those exhibits contradict allegations made in the complaint, it can be the basis for a dismissal. Notably, incorporated exhibits are not limited to contracts and other documents, but can include photographs, videos, and other forms.
Best Practices for Incorporation by Reference
Even if you have incorporated a document by reference, you may still want to include various portions of the document, such as relevant contract terms, in the text of your pleading. This is particularly true if you are incorporating a document attached to a pleading by your adversary. Doing so makes reading your pleading easier for the court as they will not have to dig for the document you are referencing.
Also note that even if your adversary has not attached, incorporated, or even mentioned a particular document in a complaint, if a document is "integral" to the dispute, a court may still be able to consider it at the motion to dismiss stage.
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