Beware Of Discovery: Eleventh Circuit Changes Course On Whether Discovery Material Counts On A 9(b) Motion

Defendants moving to dismiss amended complaints under Rule 9(b) often confront the issue of whether a plaintiff can leverage and cite to materials obtained in discovery in order to meet that rule's pleading standards. Last week, in United States ex rel. Sedona Partners LLC v. Able Moving & Storage Inc., No. 22-13340 (11th Cir. July 25, 2025), the Eleventh Circuit held that plaintiffs could do just that, and consequently reversed an unpublished decision from the circuit in 2019 that held the exact opposite.

In 2019, an Eleventh Circuit panel in Bingham v. HCA, Inc., 783 F. App'x 868, (11th Cir. 2019), affirmed the district court's decision to strike information in an amended complaint that relator learned through discovery after filing his initial complaint. The Bingham panel reasoned that striking discovery material would discourage plaintiffs from bringing actions that may only be supported through discovery, and thereby harming defendants' reputations.