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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2010 Decided March 8, 2011

No. 10-7049

SUSAN WHITING, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

APPELLANT

v.

AARP AND UNITEDHEALTHCARE INSURANCE COMPANY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00455)

Michele F. Raphael argued the cause for appellant. With

her on the briefs were Lester L. Levy and Tracy D. Rezvani.

Scott M. Edson argued the cause for appellee

UnitedHealthcare Insurance Company. William D. Coston

argued the cause for appellee AARP. With them on the brief

were Kenneth L. Blalack, Brian D. Boyle, David J. Sandler,
2

John F. Cooney, and Martin L. Saad. Michael R. Schuster

entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Susan Whiting purchased medical

insurance from United Healthcare Insurance Company

(“United”) after receiving a letter and brochure describing the

insurance from the American Association of Retired Persons

(“AARP”), of which she is a member. Upon having emergency

gall bladder surgery a year later, she submitted her medical bills

to United only to be told that inpatient pathology and radiology

services were not covered. Although United paid the costs of her

surgeon and for ten physician visits and room and board at the

hospital, Whiting was left to pay nearly forty thousand dollars

in medical bills. She sued AARP and United, on behalf of

herself and others, alleging breach of contract, fraud under the

D.C. Consumer Protection Procedures Act (“the Consumer

Act”), and she also sued AARP for unjust enrichment. The

district court dismissed the complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim on which

relief could be granted. Upon de novo review, see Atherton v.

D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), we

affirm. 

Applying the meaning that common speech imports to the

insurance contract, which is governed by District of Columbia

law, we conclude that the contract is not ambiguous. It includes

sections on what services are and are not covered and includes

notations limiting coverage that are directly relevant to

Whiting’s circumstances. But even assuming that a reasonable

person would be led astray by the absence of either the word
3

“only” or an explicit exclusion of inpatient radiology and

pathology services in the “WHAT IS COVERED” section, and/or

various other provisions in the Certificate of Insurance (“the

Certificate”) that do not contain relevant limitations, Whiting’s

breach of contract claims fail. The chart contained in the

brochure that she received from AARP stated that “only”

outpatient pathology and radiation services are covered, a word

that in the context in which it appeared can only be understood

to exclude non-outpatient services. For similar reasons, her

statutory fraud and unjust enrichment claims also fail. Further,

the district court did not err in denying Whiting’s motion to take

judicial notice of congressional materials or in dismissing the

complaint with prejudice. 

I.

According to the complaint, in August 2007 Whiting

received a marketing letter and promotional materials from 

AARP on the “AARP Medical Advantage Plan” (“the Plan”),

which was characterized as a “bridge” insurance plan

underwritten by United targeted at retirees and unemployed

AARP members who were not yet eligible for Medicare. The

marketing letter included the following statements: The Plan “is

for those who are “between jobs, retired early, or find

[themselves] needing primary health insurance”; the Plan “is not

major medical, yet [it] provides essential health benefits at an

affordable price”; the Plan “is a smart option if you need

essential health benefits right now”; the Plan offers “the

reassurance that comes with knowing that you can see a doctor

when you need to, get lab tests, and more . . . ,“ and “provides

fixed cash benefits for covered services, including . . . [l]ab tests

— up to $ XXX per day,” presumably an amount specified in

the actual letter sent to Whiting; and the Plan offers three levels

of coverage, bronze, silver, and gold, and “plan limitations and
4

exclusions, and additional details on available plan options” are

found in the enclosed brochure.

The enclosed brochure included the following statements:

The Plan “is not a major medical health plan, but is a good

option if you need essential health benefits today at an

affordable price. This plan provides valuable benefits that lower

total out-of-pocket expenses on covered medical services, and

also offers you some coverage until you qualify for Medicare. 

You’ll get fixed cash benefits for a wide range of health care

expenses — including doctor’s visits, lab tests, prescriptions,

and much more”; and AARP members should apply if: (i) “you

are without coverage,” (ii) “you need a ‘bridge’ until Medicare,”

and (iii) “you need to lower your medical costs.” In addition, a

full-page chart contained in the brochure stated that under the

bronze, silver, and gold coverage levels, “Hospital Inpatient”

benefits include a fixed daily payment. For Gold plan members,

this amount is $1,500 per day. Under a subheading marked

“Additional Benefits,” the chart stated that the Plan allots a per

procedure maximum payment for “Lab/Pathology (Outpatient

Only)” and “Radiology (Outpatient Only).” The chart also

stated that a separate “Outpatient Hospital Benefit” is subject to

an annual payment cap. 

Whiting applied for the Plan and selected the gold coverage

level. She was successfully enrolled and was issued the

Certificate, which provided insureds thirty days “to examine

your certificate” and “decide you do not want this coverage” for

a full refund. The first page of the Certificate states, in pertinent

part:

Benefits are payable as shown in the SCHEDULE OF

BENEFITS for the following:
5

•HOSPITAL INPATIENT STAYS

•HOSPITAL OUTPATIENT SERVICES

•EMERGENCY ROOM/OUTPATIENT

OBSERVATION CARE

•SURGERY

•RADIOLOGY SERVICES

•LABORATORY/PATHOLOGY SERVICES

•HEALTH CARE PRACTITIONER SERVICES

•POST-HOSPITAL CARE

In the “WHAT CERTAIN TERMS MEAN” glossary to the

Certificate, “Covered Service(s)” is defined to mean “[s]tays or

services incurred while your coverage is in force,” within a

standard of care, necessary for prevention or treatment of a

medical condition, and certified by a physician. 

“Laboratory/Pathology Services” and “Radiology Services” are

defined by reference to the Physicians’ Current Procedural

Terminology.

The Certificate’s “WHAT IS COVERED” section states that

United will pay for “the following covered stays and services

which are not otherwise excluded (see WHAT IS NOT

COVERED).” It continues: “If you are confined in a Hospital

as an inpatient, the Hospital Inpatient Stay Benefit is payable

beginning on the second day of a covered Hospital Inpatient

Stay,” as set forth in the Schedule of Benefits. The section

further states that “[i]f you incur a charge for a covered

outpatient service . . . a Hospital Outpatient Benefit is payable”

as set forth in the Schedule of Benefits. The section then lists a

series of services — none of which were provided to Whiting —

covered under the “Hospital Outpatient Benefit.” Separately,

the section describes the radiology benefit as follows:

5) Radiology Benefit – If you incur a charge for a

Radiology Service performed in an outpatient setting,

a Radiology Benefit is payable, up to a maximum of

$2,700.00 per procedure. The applicable Radiology

Benefit, as shown in the SCHEDULE OF BENEFITS,

will be determined based on the service performed . . . .

Separate benefits will not be paid for the technical and

professional components of a Radiology Service.
6

Note: If you are admitted to the Hospital as an

inpatient directly from the emergency room or

observation room, no Radiology Benefits are payable

for services performed while you were confined in the

emergency room or observation room.

The Laboratory/Pathology Benefit section immediately follows,

and it is identical in substance and format except the limit is

$1,600 per procedure rather than $2,700.00. 

The “WHAT IS NOT COVERED” section lists various

coverage exclusions, none of which apply here.

The “SCHEDULE OF BENEFITS” provides that the

Hospital Inpatient Stay Benefit for surgical inpatients is

$1,500.00 per day. The Hospital Outpatient Benefit amount is

set forth in a separate list of outpatient procedures and subject to

a $50,000 annual cap. The Radiology Benefit and

Laboratory/Pathology Benefit are subject to the aforementioned

per-procedure caps, and the specific amounts payable are set

forth in a separate list naming various procedures; it includes no

reference to inpatient or outpatient status.

Beginning in or about October 2007, Whiting commenced

making monthly premium payments of $247 (which increased

to $264.25 once she turned 60 years old the next year). A year

later, on September 23, 2008, she was admitted to the

emergency room at the Banner Desert Medical Center (“Banner

Desert”) in Phoenix, Arizona for medical problems related to her

gall bladder. Later that day, she was admitted as an inpatient at

Banner Desert. On September 26, 2008, she had surgery to

remove her gall bladder, and she was released the following day.

Banner Desert billed Whiting for $44,368.95, including

room, board, medication, supplies, laboratory/pathology
7

services, and radiology services. United paid $4,500.00,

comprising three days of the $1,500 inpatient benefit, but

refused to pay for any of the laboratory/pathology or radiology

services because they “were performed in an inpatient setting.” 

Compl. ¶¶ 29, 32. United separately paid the surgeon’s costs

and for ten patient visits.

Whiting sued United and AARP on March 5, 2009,

alleging: (1) breach of the Certificate; (2) breach of the

agreement between AARP and United, an agreement to which

she claims she is a third party beneficiary; (3) violation of the

Consumer Act, D.C. Code § 28-3901 et seq.; and (4) unjust

enrichment by AARP for accepting royalties from United. 

Whiting also sought certification of a class of similarly situated

plaintiffs. United and AARP filed a motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim. Whiting filed an opposition and also requested that the

district court take judicial notice of proceedings before the

Senate Finance Committee that was investigating AARP for

misleading marketing of AARP branded medical benefit

policies. The district court, after staying any discovery and

declining to take judicial notice, granted the motion to dismiss. 

Whiting v. AARP, 701 F. Supp. 2d 21 (D.D.C. 2010). 

II.

On appeal, Whiting contends that her complaint states a

plausible basis for a jury to find against United and AARP given

the allegedly convoluted and contradictory language of the

Certificate and the misrepresentations in their joint marketing

materials and in the Certificate that the AARP medical insurance

plan has characteristics, uses, and benefits that it did not have,

namely coverage for inpatient laboratory/pathology and

radiology expenses. 
8

The parties agree that ambiguities in insurance contracts

must be construed against the insurer, Old Am. Ins. Co. v.

Tucker, 223 A.2d 334, 336 (D.C. 1966); see also Roberts v.

State Farm Fire & Cas. Co., 705 P.2d 1335, 1336-37 (Ariz.

1985), differing only with regard to whether the Certificate was

ambiguous. As the D.C. Court of Appeals has held, it “‘is the

insurer’s duty to spell out in plainest terms — terms

understandable to the man in the street — any exclusionary or

delimiting policy provisions.’” Travelers Indem. Co. of Ill. v.

United Food & Commercial Workers Int’l Union, 770 A.2d 978,

986 (D.C. 2001) (quoting Cameron v. USAA Prop. & Cas. Ins.

Co., 733 A.2d 965, 968 (D.C. 1999)). 

Whiting maintains that for a “reasonable AARP member,”

the Certificate does not clearly and unambiguously state that the

pathology and radiology benefits are available only for

outpatient services. Specifically, Whiting notes that pathology

and radiology benefits are discussed four times in the Certificate

without any reference to whether the services are performed in

an inpatient or outpatient setting: see (1) the front page of the

Certificate, which refers to the “SCHEDULE OF BENEFITS”

for more details, (2) the “SCHEDULE OF BENEFITS,” (3) the

“LIST OF PROFESSIONAL SERVICES” (which does not

qualify benefit amounts by reference to whether services are

performed on an inpatient or outpatient basis), and (4) the

glossary (“GUIDE TO YOUR CERTIFICATE”). Further, the

Certificate repeatedly lists another category of benefits called

“Hospital Outpatient Services,” which does not include the

services rendered here. Also, she notes, the “WHAT IS

COVERED” section does not expressly exclude inpatient

radiology and pathology services, and she maintains that the

structure of the Certificate would lead a reasonable person to

focus instead on the “SCHEDULE OF BENEFITS” and other

sections. 
9

So Whiting suggests that an average person reading the

Certificate could readily and reasonably conclude that the fact

that certain services are labeled “Hospital Outpatient Services”

and the radiology and pathology benefits are listed separately

from that category and are not described in the “SCHEDULE

OF BENEFITS” as “outpatient only” indicates that those latter

benefits are available irrespective of the setting in which they

were provided. Only if she had read the “WHAT IS COVERED”

section would she have found any reference to the outpatient

setting for these benefits. She maintains that the absence of the

word “only” (which appears in the brochure but not in the

Certificate) from the “WHAT IS COVERED” section means that

even the language contained therein need not be read

exclusively. But the other language in the section concerning

emergency room treatment indicates that an exclusive (i.e.,

outpatient only) reading is the best interpretation of the relevant

subsections of the “WHAT IS COVERED” section. In the

context of the Certificate taken as a whole, she suggests,

however, that the single reference to an “outpatient setting” for

the radiology and pathology benefits is insufficiently clear to

render unambiguous whether the benefit is available for

inpatient radiology and pathology services. 

United and AARP respond that the rule requiring

construction against the insurer “has no application where no

ambiguity exists,” Old Am. Ins. Co., 223 A.2d at 336, and they

contend, as the district court concluded, 701 F. Supp. 2d at 26-

27, this is such a case, pointing to the text of the “WHAT IS

COVERED” section that radiology and laboratory/pathology

benefits are available for services “performed in an outpatient

setting.” (They also point out that this language is consistent

with the promotional materials designating those benefits as

outpatient only, but the promotional materials are extrinsic to

the contract and thus may not be considered unless the contract

is ambiguous. See Travelers Indem. Co. of Ill., 770 A.2d at 986
10

(quoting In re Corriea, 719 A.2d 1234, 1239 (D.C. 1998));

Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983).)

Whiting’s contentions thus present the question of what

standard a court is to apply in deciding whether the Certificate

is ambiguous or unambiguous. At the outset, it is clear that the

law of the District of Columbia governs the contract claims,

because the Certificate contains a choice of law clause that the

Plan is governed by District of Columbia law and under District

of Columbia law such clauses govern “‘as long as there is some

reasonable relationship with the state specified.’” Ekstrom v.

Value Health, Inc., 68 F.3d 1391, 1394 (D.C. Cir. 1995)

(quoting Norris v. Norris, 419 A.2d 982, 984 (D.C. 1980)). 

AARP, the Plan sponsor, is based in the District of Columbia,

and therefore effect should be given to the contractual choice of

law clause.

The D.C. Court of Appeals has instructed that the court’s

duty is to “interpret any ambiguous provisions in a manner

consistent with the reasonable expectations of the purchaser of

the policy,” Travelers Indem. Co. of Ill., 770 A.2d at 986. It

explained that “‘[u]nless it is obvious that the terms used in an

insurance contract are intended to be used in a technical

connotation, [the court] must construe them consistently with

the meaning which common speech imports.’” Id. (quoting In

re Corriea, 719 A.2d 1234, 1239 (D.C. 1998)). The court

concluded: “‘[I]t is the insurer’s duty to spell out in plainest

terms — terms understandable to the man [or woman] in the

street — any exclusionary or delimiting policy provisions.’” Id.

(quoting Cameron, 733 A.2d at 968). From this we understand

the reference to “the man [or woman] in the street” to require a

court to interpret the contract based on “the meaning which

common speech imports,” id., and not based on any analysis of

how Whiting herself would read the contract. 
11

Whiting suggests that the court should take into account the

probable educational attainment and sophistication of the target

audience of this mailing, perhaps implying that the seniors in

need of a “bridge to Medicare” to whom the Plan was targeted

are especially unsophisticated. But Whiting points to no case in

which local or federal courts in the District of Columbia have

relied on the vaguely-asserted characteristics of a targeted

demographic in interpreting a contract. Rather, the analysis is

based on the “nature of language in general,” Tillery v. District

of Columbia Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C.

2006), and the interpretation must be consistent “with the

meaning which common speech imports.” Travelers, 770 A.2d

at 986. Although a court must be careful not to view “the man

[or woman] in the street” as a legally trained or other

professional or necessarily even a college graduate, cf. Walker

v. Nat’l Recovery, Inc., 200 F.3d 500, 501 (7th Cir. 1999), the

requirement that the terms of insurance contracts be plainly set

forth presupposes that a person of average intelligence would be

able to understand those plain terms. Thus, subject to the

qualification for technical connotation, if an insurance contract

states in plain terms what is covered, then “the man [or woman]

in the street” should be able to understand what is said.

Whiting acknowledges that a reasonable person would read

the whole Certificate, as the Certificate itself admonishes:

“PLEASE READ YOUR CERTIFICATE CAREFULLY.” The

Certificate begins, after stating the thirty-day right to examine

the Certificate and the limitation for pre-existing conditions,

with a “GUIDE TO YOUR CERTIFICATE,” by listing the

sections and the pages on which they can be found. It then

defines who is eligible to be covered and the terms used in the

Certificate. The next section is “WHAT IS COVERED.” It is

followed by the “WHAT IS NOT COVERED” section. The

“SCHEDULE OF BENEFITS” appears only after three more

sections — GENERAL MATTERS, WHEN YOUR COVERAGE
12

STOPS, and BENEFITS AFTER YOUR COVERAGE STOPS. 

Nonetheless, Whiting would place little emphasis on the notion

that “the man [or woman] in the street” would want to know

what medical services were covered under the Certificate, and

that the logical place to find such information would be in the

section of the Certificate titled “WHAT IS COVERED.” In other

words, the common sense approach of “the man [or woman] in

the street” would appear to require the court to focus on the

statement of what is covered in order to determine whether the

Certificate unambiguously states that among the covered

services are outpatient radiology and pathology services. And,

given the section’s title, a reasonable person would understand

that only those items listed in the section are covered by the

policy, subject to the further exclusions in the “WHAT IS NOT

COVERED” section, and that no coverage will be available for

anything not listed in the what-is-covered section. Once

knowing what was covered and what was excluded among

covered services, it would appear most likely such a person

would then turn to the schedule for payment amounts and caps,

not vice versa as Whiting suggests. 

Looking to the plain terms of the “WHAT IS COVERED”

section, a reasonable person would have to conclude that

inpatient radiology services are not covered under the Certificate

based on the sentence that reads: “If you incur a charge for a

Radiology Service performed in an outpatient setting, a

Radiology Benefit is payable, up to a maximum of $2,700.00

per procedure.” There is no equivalent sentence for radiology

benefits performed in an inpatient setting, leading a reasonable 

person to conclude that benefits are payable only in an

outpatient setting. Further, the “Note” that follows precludes

payment for outpatient radiology services if the policyholder is

thereafter admitted as an inpatient. This note, which addresses

circumstances similar to those experienced by Whiting, would

resolve any doubt as to whether inpatient radiology services
13

would be payable under the Certificate, because, as the district

court concluded, it would be nonsensical for inpatient and

outpatient services to be covered, but not outpatient services

when followed by admission as an inpatient. Whiting, 701 F.

Supp. 2d at 26. The same reasoning holds true for inpatient

pathology services, because the paragraphs that follow contain

identical language, including the limiting “Note,” substituting

“Laboratory/Pathology” for “Radiology” and $1,600.00 for

$2,700.00.

But even if Whiting is correct that the Certificate’s other

references to these benefits, lacking any mention of the inpatient

or outpatient settings, would confuse “the man [or woman] in

the street,” her breach of contract claim still fails because the

promotional materials clear up any ambiguity. Whiting agrees

that the promotional materials, which are attached to the motion

to dismiss, may be considered on the motion to dismiss and we

agree. The documents are referred to and relied on in the

complaint, see 188 LLC v. Trinity Industries, 300 F.3d 730, 735

(7th Cir. 2002); Bedall v. State Street Bank & Trust Co., 137

F.3d 12, 17 (1st Cir. 1998); cf. In re Cheney, 406 F.3d 723, 729

(D.C. Cir. 2005), and such extrinsic materials are to be

considered in a breach of contract dispute if the contract is

ambiguous, see Holland, 456 A.2d at 815. A full page chart

included with the materials that Whiting received before

applying for coverage states that the laboratory/pathology and

radiology benefits were “(Outpatient Only)”. No reasonable

person could construe these words to include coverage for

inpatient laboratory/pathology and radiology services, and

Whiting appears to acknowledge as much by maintaining that

the absence of the word “only” from the “WHAT IS COVERED”

section of the Certificate is what renders ambiguous the

language in that section. The extrinsic evidence thus makes

clear the meaning of the contract, and dismissal of the breach of

contract claim was appropriate.
14

Whiting’s other contentions also fail:

1. Whiting’s claim that she is an intended third party

beneficiary of the agreement between AARP and United to offer

the Plan to AARP’s members is redundant of the breach of

contract claim. Whiting, 701 F. Supp. 2d at 27-28. As such an

intended beneficiary, Whiting alleges that United breached its

obligation to AARP to provide insurance to its members. Due

to the stay of discovery, she has not obtained the Group Policy

or any other agreements between AARP and United; nor have

AARP or United made these agreements part of the record. But

Whiting does not allege that the scope of AARP’s and United’s

contractual obligations to her could extend beyond a duty to

provide insurance pursuant to the terms of the Group Policy, and

there is no allegation or suggestion that the Group Policy terms

differ in any way from the Certificate. 

2. Assuming, as Whiting maintains, the Consumer Act

applies to the promotional materials and the Certificate, under

District of Columbia law a claim “of an unfair trade practice is

properly considered in terms of how the practice would be

viewed and understood by a reasonable consumer.” Pearson v.

Soo Chung, 961 A.2d 1067, 1075 (D.C. 2008). Whiting points

to language in the promotional materials promising “essential

health benefits” and “[a]ffordable health insurance” and

maintains these phrases would have “a tendency to mislead,”

D.C. Code § 28-3904(e), or otherwise cause a “reasonable

consumer to believe that the laboratory/pathology and radiology

costs incurred would be covered.” Appellant’s Br. 37. In other

words, for her statutory claim to succeed, Whiting must prove

that a reasonable person would interpret the promotional

materials and the Certificate to mean that inpatient radiology

and laboratory/pathology services were covered. Citing Walker

v. Nat’l Recovery, Inc., 200 F.3d 500, 502 (7th Cir. 1999), a case

involving notice under the Fair Debt Collection Practices Act
15

(“FDCPA”), Whiting maintains that this court cannot decide on

a motion to dismiss whether a reasonable person would tend to

be misled by the promotional materials. In the fraud context,

however, this court has held that materials can be nonmisleading

as a matter of law if no reasonable person would be misled. 

Trudeau v. FTC, 456 F.3d 178, 194 (D.C. Cir. 2006). It is worth

noting, moreover, that circuit courts of appeal to address the

question have rejected the Walker approach and concluded that

courts can find debt collection notices not to be confusing as a

matter of law under the FDCPA. See Wilson v. Quadramed

Corp., 225 F.3d 350, 353 n.2 (3d Cir. 2000); Terran v. Kaplan,

109 F.3d 1428, 1432-33 (9th Cir. 1997); Russell v. Equifax

A.R.S., 74 F.3d 30, 33, 35 (2d Cir. 1996). We agree with the

principle underlying these cases and that the district court could

appropriately grant a motion to dismiss on a deceptive practices

claim if no reasonable person would be so deceived.

Contrary to Whiting’s view, no reasonable person could

read the broad, general promotional statements contained in the

marketing materials to have the specific meaning that Whiting

proposes. Even if they could be read that way taken alone —

and were not, as the district court found, accurate and nonmisleading statements or mere puffery, Whiting, 701 F. Supp. 2d

at 29 — the context refutes her proposed interpretation. The

promotional materials refer repeatedly to an enclosed brochure

“for plan limitations and exclusions,” and the brochure contains

a chart that states that the laboratory/pathology and radiology

benefits are outpatient only. This limitation is repeated in the

“WHAT IS COVERED” section of the Certificate. Thus, reading

them together, no reasonable person could read the promotional

materials and Certificate and understand them to mean that

inpatient radiology and laboratory/pathology services were

covered under the Plan. Dismissal of the statutory claim was

therefore warranted.
16

3. Whiting’s unjust enrichment claim also was properly

dismissed. She maintains that AARP received royalties from

her purchase of the Plan and that, in the circumstances, retaining

these royalties would be unjust. Whiting acknowledges,

however, that the survival of this claim depends on the validity

of her breach of contract or statutory claim, because AARP’s

enrichment would otherwise have been entirely just. 

4. The district court did not abuse its discretion in denying

Whiting’s motion for judicial notice of materials relating to the

Senate Finance Committee’s investigation of AARP’s practices

relating to sponsored health insurance plans. See Lee v. City of

Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); 21B CHARLES

ALAN WRIGHT & KENNETH W. GRAHAM, FEDERAL PRACTICE

AND PROCEDURE § 5110.1 (2d ed. 2005). Although the district

court may take judicial notice in ruling on a motion to dismiss,

see Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.

Cir. 2007), the matters to be noticed must be relevant, and the

Senate Finance Committee materials are irrelevant to disposition

of the motion to dismiss, which turns on the adequacy of the

well-pleaded factual allegations in the complaint, which are

assumed to be true, Atherton, 567 F.3d at 681. Whiting

acknowledges, moreover, that the Senate Finance Committee

materials merely “contain[] facts alleged in the Complaint,”

Appellant’s Br. 44, and thus the materials are redundant and

unnecessary to disposition of the motion to dismiss. 

5. There is no merit to Whiting’s contention that the district

court should have afforded her leave to amend her complaint,

based on the footnote in her opposition to the Rule 12(b)(6)

motion requesting leave if any of her claims is dismissed. That

footnote did not satisfy the requirement that a motion to amend

provide some “indication of the particular grounds on which

amendment is sought.” City of Harper Woods Emps’ Retirement

Sys. v. Olver, 589 F.3d 1292, 1304 (D.C. Cir. 2009) (internal
17

quotation marks omitted). Instead, the footnote merely stated

that “if this Court finds that [Whiting] has improperly plead [sic]

any element of the claims asserted, she respectfully requests that

she be given an opportunity to replead same.” Pl.’s Opp’n Br.

3 n.2. The problem with Whiting’s case is not improper

pleading; it is that her claims are legally defective, and she did

not identify any new claims or allegations that would cure the

defects. She did not do so in opposing the motion to dismiss or

by filing a motion to amend her complaint pursuant to Federal

Rule of Civil Procedure 15; nor did she file a motion for

reconsideration of the order dismissing her complaint pursuant

to Federal Rule of Civil Procedure 59(e). Dismissal of the

complaint with prejudice was therefore appropriate.

Accordingly, we affirm the order dismissing the complaint

for failure to state a claim upon which relief can be granted.