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(11th Cir. July 25, 2025), the Eleventh Circuit held that plaintiffs could do just that, and consequently reversed an unpublished decision from the circuit in 2019 that held the exact opposite.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.

The Sedona Partners panel, however, stated that Bingham was neither binding nor persuasive because it was an unpublished decision. The court further noted that Rule 9(b) contained “no restriction on the source of the information that may be used to satisfy the rule.” In its view, barring discovery materials from being considered would “conflict with the Supreme Court’s warnings to federal courts to abstain from supplementing the Federal Rules of Civil Procedure.”

The court also rejected defendants’ policy arguments that the holding would encourage frivolous suits that (1) allow a relator to circumvent Rule 9(b) requirements by leveraging discovery material and (2) fail to apprise defendants of their precise misconduct with which they are charged. Instead, the court found that defendants’ “policy arguments cannot supersede the clear … text of the rule.” Thus, the Eleventh Circuit remanded to the district court to consider whether the relator met Rule 9(b), considering the discovery-based information.

As courts routinely often allow plaintiffs to amend a complaint that is dismissal-worthy, this decision highlights the importance of defendants seeking to prevent discovery until motions to dismiss all amended complaints are resolved. We at Qui Notes will be watching to see how this decision will have an effect on FCA suits. 

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.