Reported / Citable
Background
Samir R. Khoury sued KBR, Inc., asserting a single claim for malicious prosecution. KBR moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Khoury’s factual allegations were insufficient to satisfy the elements required by Texas law.
In opposing dismissal, Khoury added assertions—including allegations that KBR knowingly provided false information—that did not appear in his complaint. KBR replied that a plaintiff cannot use a response brief to add facts absent from the operative pleading.
The Court’s Holding
The court explained that its Rule 12(b)(6) review is limited to the facts stated in the complaint and documents attached to or incorporated into it. Because Khoury’s response relied on potentially pertinent facts that had not been pleaded, the court declined to conduct an immediate element-by-element analysis of the existing complaint.
The court granted Khoury leave to file a first amended complaint by October 30, 2026. It stated that KBR’s motion to dismiss would be granted if Khoury did not amend by that deadline. If he timely amended, KBR would have 21 days to respond to the amended complaint as it saw fit.
Key Takeaways
- Facts asserted only in briefing cannot cure omissions from a complaint on a Rule 12(b)(6) motion.
- The court did not decide whether Khoury’s malicious-prosecution allegations ultimately satisfy Texas law.
- Khoury received leave to amend by October 30, 2026; failure to do so would result in KBR’s dismissal motion being granted.
Why It Matters
The order underscores that allegations needed to support a claim must appear in the operative complaint, not merely in a response to a dismissal motion. It also reflects the liberal policy favoring amendment by allowing Khoury to place his additional factual assertions into a revised pleading before the court evaluates the claim’s legal sufficiency.