UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Randal C. Fritz

v. Case No. 06-cv-469-PB

Kenneth Brown and

Katharine Daly

O R D E R

Randal Fritz moves to strike numerous documents attached to 

defendants’ motion to dismiss (Doc. No. 9) his First Amendment

retaliation claims. He argues that the documents he seeks to

strike are extrinsic to the pleadings and thus improper for

consideration on a Rule 12(b)(6) motion to dismiss. Pl.’s Motion

to Strike (Doc. No. 10). The documents he seeks to strike

include pleadings and attachments from a related prior action,

Civil No. 06-cv-191-PB, a Notice of Contemplation of Dismissal

and its attachments, a Notice of Termination, portions of

arguments in defendants’ memorandum in support of their motion to

dismiss, Fritz’s Notice of Withdrawal of a state whistle-blower 

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complaint, and an opinion issued by the Merit Systems Protection

Board. Id. 

In ruling on a Rule 12(b)(6) motion to dismiss, I must

consider the complaint, documents annexed to it, and other

materials fairly incorporated within it. Rodi v. S. New Eng.

Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). Additionally, I may

consider matters that are susceptible to judicial notice. Id.

This includes matters of public record such as documents from

prior court proceedings, Boaten v. InterAmerican Univ., Inc, 210

F.3d 56, 60 (1st Cir. 2000), and the “entirety of a document

integral to or explicitly relied upon in the complaint, even

though not attached to the complaint.” Clorox Co. P.R. v.

Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000);

see also Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993)

(explaining that the main problem of looking to documents outside

the complaint – lack of notice to the plaintiff – is dissipated

“[w]here plaintiff has actual notice . . . and has relied upon

these documents in framing the complaint”). I may consider such

extra pleading materials without converting a motion to dismiss

to one for summary judgment. Id. 

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Fritz’s claims in this case are inextricably intertwined

with his termination. In his complaint, Fritz repeatedly cites

to, and purports to quote from, the Notice of Contemplation of

Dismissal and Notice of Termination. Accordingly, I conclude

that the entirety of each of these documents, including their

attachments, is integral to and fairly incorporated into the

complaint. Furthermore, Fritz’s withdrawal of his whistle-blower

complaint and the opinion by the Merit Systems Protection Board

are both public documents of which this court may properly take

judicial notice. See In re Colonial Mortgage Bankers Corp., 324

F.3d 12, 15 (1st Cir. 2003). As to defendants’ memorandum, Fritz

does nothing more than object to defendants’ arguments. While

these objections are noted, the proposed remedy of striking such

contents is unwarranted. 

For the foregoing reasons, Fritz’s motion to strike (Doc.

No. 10) is denied. 

SO ORDERED.

/s/Paul Barbadoro

Paul Barbadoro

United States District Judge

August 29, 2007

cc: Pierre Rumpf, Esq.

Paula Werme, Esq.

Nancy J. Smith, Esq.

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