Drake’s April 17 reply brief says Judge Jeannette Vargas relied on material outside his amended complaint when dismissing the Not Like Us case.
It sounds procedural, but this is one of Drake’s main routes for getting the dismissal undone. His argument is not simply that the judge misunderstood Kendrick Lamar’s lyrics. He says the court used outside material to settle disputed points before he had a normal chance to answer them with evidence.
UMG sees the same record differently. The label says the court properly looked at the surrounding rap battle because context is central to deciding whether challenged words read as fact or opinion, and it argues the judge never crossed into improper fact-finding.
Federal Rule 12(d) draws an important line. If a court considers matters outside the pleadings instead of excluding them, the motion must be treated as one for summary judgment. The parties then get a reasonable opportunity to present material relevant to that different procedural posture.
A University of Michigan Journal of Law Reform article on the boundary between pleading attacks and summary judgment traces the reason for separating those procedures. A dismissal motion tests the pleading. Summary judgment is built for testing claims against evidence.
Drake says the distinction broke down here. UMG asked the district court to take judicial notice of numerous exhibits, including song lyrics and other public material. Drake agreed some material could be noticed for limited purposes, but he argues the court went further by using it to conclude allegations in his complaint.
Judge Vargas treated the song as part of the surrounding feud and described the later accusations as a callback to Drake’s own provocation. Drake says the problem was not merely acknowledging that “Taylor Made Freestyle” existed. His appeal argues the court used the track to infer what listeners knew, what Drake meant, and how the audience would connect one song to another.
UMG says this is being dressed up as a factual dispute when it is really part of the legal context analysis. Its appellate brief argues courts deciding defamation cases can look at forum, tone, surrounding events, and the full communication to determine whether a reasonable audience would hear fact or opinion.
The disagreement matters because judicial notice has limits. A court can recognize that public material exists without automatically accepting every disputed inference drawn from it. Drake leans on Second Circuit precedent saying outside material cannot be used at the pleading stage to contradict a plaintiff’s factual allegations without the protections that come with summary judgment.
The same track appears in the amicus briefs supporting UMG, where one group argues Drake effectively invited the type of attack he later sued over. The procedural question here is narrower than the consent theory.
Drake responds that permission to notice words is not permission to resolve contested facts about audience knowledge or meaning. His brief says the court deprived him of a chance to rebut the assumption that an ordinary “Not Like Us” listener would have heard a briefly available earlier track and understood Lamar’s lyrics through it.
Drake’s December 4 hearing is an appellate argument, not a retrial, so the panel will not hear new witnesses to settle the point. The judges instead have to decide whether the district court stayed within the rules governing dismissal or resolved a factual contest too early.
A win for Drake on this procedural issue would not establish that the lyrics were defamatory. It could mean the dismissal happened through the wrong process and that some claims need to return to the district court for further proceedings. Drake’s current Not Like Us appeal therefore turns partly on an ordinary civil-procedure question inside an unusually famous rap dispute.
It sounds procedural, but this is one of Drake’s main routes for getting the dismissal undone. His argument is not simply that the judge misunderstood Kendrick Lamar’s lyrics. He says the court used outside material to settle disputed points before he had a normal chance to answer them with evidence.
UMG sees the same record differently. The label says the court properly looked at the surrounding rap battle because context is central to deciding whether challenged words read as fact or opinion, and it argues the judge never crossed into improper fact-finding.
The fight starts with what a judge can consider
A Rule 12(b)(6) motion tests whether a complaint states a legally sufficient claim. Courts generally accept well-pleaded factual allegations as true and draw reasonable inferences for the plaintiff, while still being allowed to consider certain incorporated documents and matters suitable for judicial notice.Federal Rule 12(d) draws an important line. If a court considers matters outside the pleadings instead of excluding them, the motion must be treated as one for summary judgment. The parties then get a reasonable opportunity to present material relevant to that different procedural posture.
A University of Michigan Journal of Law Reform article on the boundary between pleading attacks and summary judgment traces the reason for separating those procedures. A dismissal motion tests the pleading. Summary judgment is built for testing claims against evidence.
Drake says the distinction broke down here. UMG asked the district court to take judicial notice of numerous exhibits, including song lyrics and other public material. Drake agreed some material could be noticed for limited purposes, but he argues the court went further by using it to conclude allegations in his complaint.
Taylor Made Freestyle is the sharpest example
The biggest flashpoint is “Taylor Made Freestyle.” Drake’s amended complaint did not mention the track, yet the district court considered its lyrics when deciding how a reasonable listener would understand Lamar’s accusations in “Not Like Us.”Judge Vargas treated the song as part of the surrounding feud and described the later accusations as a callback to Drake’s own provocation. Drake says the problem was not merely acknowledging that “Taylor Made Freestyle” existed. His appeal argues the court used the track to infer what listeners knew, what Drake meant, and how the audience would connect one song to another.
UMG says this is being dressed up as a factual dispute when it is really part of the legal context analysis. Its appellate brief argues courts deciding defamation cases can look at forum, tone, surrounding events, and the full communication to determine whether a reasonable audience would hear fact or opinion.
The disagreement matters because judicial notice has limits. A court can recognize that public material exists without automatically accepting every disputed inference drawn from it. Drake leans on Second Circuit precedent saying outside material cannot be used at the pleading stage to contradict a plaintiff’s factual allegations without the protections that come with summary judgment.
The same track appears in the amicus briefs supporting UMG, where one group argues Drake effectively invited the type of attack he later sued over. The procedural question here is narrower than the consent theory.
The appeal separates legal context from factual inference
UMG has a procedural answer of its own. It notes that Drake’s lawyers conceded the court could take judicial notice of other song lyrics and says the judge used them only to decide the legal question of context. UMG also argues the judicial-notice decision is reviewed for abuse of discretion, even though the Rule 12(b)(6) dismissal itself receives fresh review.Drake responds that permission to notice words is not permission to resolve contested facts about audience knowledge or meaning. His brief says the court deprived him of a chance to rebut the assumption that an ordinary “Not Like Us” listener would have heard a briefly available earlier track and understood Lamar’s lyrics through it.
Drake’s December 4 hearing is an appellate argument, not a retrial, so the panel will not hear new witnesses to settle the point. The judges instead have to decide whether the district court stayed within the rules governing dismissal or resolved a factual contest too early.
A win for Drake on this procedural issue would not establish that the lyrics were defamatory. It could mean the dismissal happened through the wrong process and that some claims need to return to the district court for further proceedings. Drake’s current Not Like Us appeal therefore turns partly on an ordinary civil-procedure question inside an unusually famous rap dispute.
