Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the
Clerk of any formal errors in order that corrections may be made before the
bound volumes go to press.
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 •RADIOLOGY SERVICES
•HOSPITAL OUTPATIENT SERVICES •LABORATORY/PATHOLOGY SERVICES
•EMERGENCY ROOM/OUTPATIENT •HEALTH CARE PRACTITIONER SERVICES
OBSERVATION CARE •POST-HOSPITAL CARE
•SURGERY
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 non-
misleading 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.