Introduction: Upon Information and Belief Allegations in Motions to Dismiss
Plaintiffs often can't see the facts that matter most. A defendant's knowledge, intent, internal conduct, and proprietary processes sit behind closed doors until discovery opens. So complaints say "upon information and belief."
The phrase is neither a safe harbor nor a defect. Courts look at the factual foundation, the elements of the claim, the governing pleading standard, and whether the defendant controls the information.
This article covers the federal plausibility standard, heightened pleading rules, state variations, strategies for moving to dismiss or opposing dismissal, and a practical review process. It is general information, not legal advice. Verify every authority in your jurisdiction.
Key Takeaways
- Qualified allegations can survive when backed by concrete facts or information peculiarly within the defendant's control.
- The phrase cannot replace a reasonable prefiling inquiry or allegations on each element.
- Fraud claims need more particularity than ordinary Rule 8 pleading.
- Courts test sufficiency at this stage, not the truth of disputed facts.
What the Pleading Standard Requires
What "Upon Information and Belief" Means
Cornell's Wex describes the phrase as meaning "I am only stating what I have been told, and I believe it." It separates secondhand information from personal knowledge.
A pleader with personal knowledge states the fact. A pleader without it states a reasonable inference about facts it cannot yet verify. The wording is most defensible when the complaint explains why the pleader believes the allegation and why the supporting information is unavailable before discovery.
Federal Standards Governing a Motion to Dismiss
Rule 8(a)(2) requires a short and plain statement showing the pleader is entitled to relief. Rule 12(b)(6) permits dismissal for failure to state a claim. Under Twombly and Iqbal, the claim must be plausible on its face, not merely conceivable.
Courts at this stage:
- Accept well-pleaded facts and reasonable inferences as true
- Disregard labels, conclusions, and formulaic recitations of the elements
- Reject unsupported speculation
Rule 11(b)(3) adds a second layer. After a reasonable inquiry, a signer certifies that factual contentions have evidentiary support or, if specifically identified, will likely have support after further investigation or discovery.
The 1993 advisory note makes clear this is not a license to plead without a factual basis. Counsel cannot use the phrase to postpone an investigation that should have happened before filing.
Heightened and Jurisdiction-Specific Requirements
Rule 9(b) requires fraud to be pleaded with particularity: the who, what, when, where, and how. Malice, intent, and knowledge may be alleged generally, but Iqbal holds that this does not exempt them from Rule 8 plausibility. The phrase does not erase particularity.
State rules differ, so compare them before saying a formulation is allowed or barred:
| Jurisdiction | Standard | Notable authority |
|---|---|---|
| California | Facts constituting the cause of action, in ordinary and concise language | Pridonoff v. Balokovich permits information-and-belief allegations on matters outside personal knowledge |
| New York | CPLR 3016(b): fraud circumstances "stated in detail" | Pludeman allows a reasonable inference where critical facts are unavailable pre-discovery |
| Texas | Rule 47(a): fair notice; Rule 91a asks whether "no reasonable person could believe the facts pleaded" | Texas wording, not Twombly's |
| Florida | Rule 1.110(b): ultimate facts; Rule 1.120(b): fraud with particularity as circumstances permit | Mental conditions may be averred generally |
Local rules and controlling circuit precedent also matter.
When Information-and-Belief Allegations Survive or Fail
Circumstances Supporting Sufficiency
Allegations fare better when the proof sits with the defendant: internal knowledge, manufacturing processes, proprietary records, or intent. Independent factual allegations can make the inference plausible even without direct access to evidence.
Representative authority, each with limits:
- Arista Records v. Doe 3, 604 F.3d 110 (2d Cir. 2010): Twombly does not bar qualified pleading where facts are peculiarly within the defendant's possession or the belief rests on factual information making culpability plausible. The posture was a motion to quash a subpoena, not a Rule 12(b)(6) appeal.
- Ahern Rentals v. EquipmentShare.com, 59 F.4th 948 (8th Cir. 2023): qualified allegations are not categorically insufficient. Detailed relationships and alleged conduct supported inferences of knowledge, and dismissal of the relevant claims was reversed. The device does not rescue a threadbare complaint.
- DSM IP Assets v. Honeywell, No. 23-675 (D. Del. Nov. 2, 2023): a district court found manufacturing information within Honeywell's control, plus concrete product allegations, supported qualified pleading. Most claims survived, but not claim 8. It is not a patent-wide exemption.
- Soo Park v. Thompson, 851 F.3d 910 (9th Cir. 2017): conspiracy allegations with factual context and information within defendants' knowledge sufficed.
The Aaron decision is sometimes cited alongside these; confirm its holding before relying on it.
Common Grounds for Dismissal
Dismissal risk rises when a complaint:
- Says the defendant "knew," "intended," "conspired," or acted "willfully" with no facts making that inference reasonable
- Never ties the allegation to an element of the cause of action
- Lumps defendants together without saying who did what
- Offers no reason the information could not be obtained before filing
Fraud is the sharpest risk. Missing speaker, representation, timing, content, reliance, falsity, or harm invites dismissal. Courts apply these requirements with the information-and-belief phrase in view:
- DiVittorio v. Equidyne (2d Cir. 1987): fraud ordinarily cannot rest on information and belief alone. Where facts are within the opposing party's knowledge, the complaint must state facts supporting the belief and inform each defendant of its alleged participation.
- Pirelli v. Walgreen (7th Cir. 2011): requires inaccessible facts and plausible grounds for suspicion. Dismissal was affirmed.
- Neubronner v. milken (9th Cir. 1993): relaxation for matters within the defendant's knowledge does not nullify Rule 9(b).
The "Rosenberg" shorthand is ambiguous. One state case, Goldberg v. Rosenberg, 116 A.D.3d 919 (N.Y. App. Div. 2014), treated broad information-and-belief allegations of trust manipulation and fraud as legal conclusions. It is not a federal Rule 9(b) holding.
Discovery-Dependent Allegations Versus Speculation
A discovery-dependent allegation points to surrounding facts that make the inference plausible. Speculation just asserts the wanted conclusion.
A plaintiff need not prove the claim in the complaint. It must plead enough to show a reasonable expectation that discovery will reveal supporting evidence. Clausen (11th Cir. 2002), a False Claims Act case, shows the other side: even where the defendant held billing records, speculation that a scheme must have produced false claims fell short.
Courts disagree, particularly where state courts apply different versions of plausibility or particularity. Don't treat any single decision as a nationwide rule.
How to Bring or Defend a Motion to Dismiss
Grounds for Challenging the Allegations
A defendant should frame a Rule 12(b)(6) argument around a specific defect:
- A missing element
- Conclusory allegations
- No factual foundation for the inference
- Improper group pleading
- Failure to meet Rule 9(b) or another heightened rule
Show precisely why the pleaded facts do not support the inference. Arguing only that "information and belief" is categorically improper is weak, given Arista, Ahern, and Soo Park.
Other Rule 12(b) grounds apply only if the record supports them: lack of subject-matter or personal jurisdiction, improper venue, insufficient process or service, and failure to join a Rule 19 party.
Personal jurisdiction, venue, process, and service defenses are waived if omitted from the first Rule 12 motion.
Limits on the Court's Review
The court generally looks at the complaint, incorporated documents, and judicially noticeable matters, per Tellabs.
Under Rule 12(d), if outside matters are presented and not excluded, the motion converts to summary judgment, and all parties must get a reasonable opportunity to submit material.
The court should not resolve credibility disputes, choose between competing explanations, or hold a mini-trial when the claim is plausible.
How to Oppose the Motion
- Map facts to elements. Identify the allegations supporting each challenged element.
- Explain the inferences. Show what those facts reasonably permit and why more information is controlled by the movant.
- Distinguish adverse cases. Separate bare-conclusion or Rule 9(b) cases from decisions allowing discovery-dependent allegations, using controlling authority.
- Ask for leave to amend. Rule 15(a) says leave is freely given when justice requires, but Foman v. Davis lists undue delay, bad faith, repeated failure to cure, prejudice, and futility as grounds to deny.
If the court grants the motion, check whether dismissal is with prejudice. Rule 41(b) says involuntary dismissals generally operate as adjudications on the merits unless the order says otherwise, with exceptions for jurisdiction, venue, and Rule 19. Read the actual order rather than assuming dismissal is without prejudice.
Procedural and Strategic Considerations
- Rule 12(a)(1) generally sets the answer deadline at 21 days after service, or 60 days after a waiver request was sent (90 if sent outside any U.S. judicial district).
- A motion to dismiss is not an answer. Under Rule 12(a)(4), filing it generally postpones the answer: 14 days after notice of the court's action if the court denies the motion or postpones it until trial.
- Those are answer deadlines, not opposition schedules. Check local rules under Rule 83 for briefing and hearing dates.
- Preserve alternative arguments and request precise relief. Leave factual disputes for discovery or summary judgment.
Drafting and Review Checklist for Counsel
For the Party Asserting Information-and-Belief Allegations
- Build an element-by-element chart: allegation, factual source or inference, why the information is unavailable, and the discovery likely to test it
- Separate facts from conclusions
- Plead each defendant's conduct individually
- Document a reasonable prefiling inquiry under Rule 11, judged objectively at the time without hindsight, per the NYC Bar's report
- Confirm compliance with Rule 9(b) and state or local rules
For the Party Seeking Dismissal
- Quote each challenged allegation and map it to the element it should prove
- Identify the missing factual link or unsupported inference
- Separate real pleading defects from factual disputes that courts will not resolve at this stage
- Choose the strongest relief: dismissal of a claim, dismissal of particular allegations, or leave to amend
Operationalizing the Review for Defense Teams
Information-and-belief allegations are easier to test when the underlying file is organized. Defense teams can pull key materials into one structured review so each allegation traces to supporting or contradictory facts:
- Complaint and claim files
- Correspondence, policies, and contracts
- Investigation materials and prior litigation
A repeatable workflow looks like this:
- Flag allegations about knowledge, intent, control, or internal conduct.
- Link each to documents likely to be discoverable.
- Record attorney decisions on plausibility, preservation, and response strategy.
OraClaim's AI-powered platform can help defense lawyers and claims professionals structure unstructured claim data and surface litigation-ready information for human review. The tools operate at the direction of authorized users. Counsel stays responsible for legal analysis, factual verification, confidentiality, and professional obligations. ABA Formal Opinion 512 addresses competence, confidentiality, and supervision for generative AI use.
Frequently Asked Questions
Does filing a motion to dismiss count as an answer?
No. It is a motion, not a responsive pleading. Under Rule 12(a)(4), filing it generally postpones the deadline to answer until after the court acts. Confirm the rule in your jurisdiction.
What are the grounds for filing a motion to dismiss?
Federal Rule 12(b) lists lack of subject-matter or personal jurisdiction, improper venue, insufficient process or service, failure to state a claim, and failure to join a Rule 19 party. State grounds and deadlines vary.
How do you defend against a motion to dismiss?
Tie well-pleaded facts to each element and explain the reasonable inferences. Distinguish adverse authority, and request leave to amend if the court finds a curable defect.
Should you use "upon information and belief" or "on information and belief"?
Both are used. Published authorities do not treat the two phrases as having different legal effects. Follow your jurisdiction's rules, local practice, and house style.
Can a complaint rely entirely on allegations made upon information and belief?
It's risky. The complaint should include facts supporting each inference and meet any heightened requirement, such as Rule 9(b).
What happens if a motion to dismiss is granted?
Dismissal may be with or without prejudice, as the order and Rule 41(b) provide. The plaintiff may amend, appeal when the dismissal is final, or proceed on remaining claims.
