Porteous v. Capital One Services II, LLC, 041420 FED9, 18-16336

Docket Nº:18-16336
Party Name:NATASHA PORTEOUS, Plaintiff-Appellant, v. CAPITAL ONE SERVICES II, LLC, Defendant-Appellee.
Judge Panel:Before: SILER, WARDLAW, and M. SMITH, Circuit Judges.
Case Date:April 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

NATASHA PORTEOUS, Plaintiff-Appellant,



No. 18-16336

United States Court of Appeals, Ninth Circuit

April 14, 2020


Argued and Submitted March 3, 2020 San Francisco, California

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding No. 2:17-cv-02866-JCM-GWF

Before: SILER, [**] WARDLAW, and M. SMITH, Circuit Judges.


Natasha Porteous appeals from the district court's dismissal of her putative class action claim against Defendant Capital One Services II, LLC. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Dougherty v. City of

Covina, 654 F.3d 892, 897 (9th Cir. 2011), and we reverse.

1. We decline to consider the declarations and exhibits attached by Defendant in response to Plaintiff's motion for circulation of notice, which do not fall within the bounds of the incorporation-by-reference doctrine. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018); Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). With regard to the declarations, the complaint neither refers to nor relies on these declarations, nor could it have given that the declarations postdate the complaint. See Marder, 450 F.3d at 448-49. Therefore, it would be inappropriate for this court to consider them in reviewing Defendant's 12(b)(6) motion.

With regard to the exhibits, the complaint likewise does not "refer[] to" any of these documents.[1] Id. at 448; see also Khoja, 899 F.3d at 1002 (whether "the plaintiff refers extensively to the document") (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003)). The exhibits do not "form[] the basis of the plaintiff's claim" because the complaint concerns what Plaintiff actually had to do in practice, not whether a written policy facially required something. Khoja, 899 F.3d at 1002 (quoting Ritchie, 342 F.3d at 907); see also Marder, 450 F.3d at 448 (whether "the document is central to the plaintiff's claim"). And although Plaintiff does not presently "question[] the authenticity" of the various exhibits, Plaintiff does contest the facts purportedly shown by those documents, i.e., whether Defendant actually paid employees appropriately for all work performed. Marder, 450 F.3d at 448. Cf. Sgro v. Danone Waters of N. Am., Inc., 532 F.3d 940, 942 n.1 (9th Cir. 2008) (where the complaint referenced a disability benefits plan, the court found it proper to consider the plan documents, but did not assume the truth of the documents' contents because the parties...

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