Federal rules of civil procedure motion to dismiss

Today, we’ll be covering one of the most important topics in the subject: Federal Rules of Civil Procedure Rule 12(b)(6).

FRCP Rule 12(b) pertains to pretrial motions, and 12(b)(6) specifically deals with motions to dismiss for failure to state a claim upon which relief can be granted.

As a practical matter, Rule 12(b)(6) motions are rarely successful, and when they are, their success usually has more to do with the judge than the law. Nevertheless, they appear regularly in law school civil procedure exams (and bar exam civil procedure questions), so it’s important to be aware of them.

“Failure to state a claim upon which relief can be granted” can mean a number of things, all of which have to do with what is stated in a complaint.

First, and most typically, this means that the complaint failed to properly allege one or more of the required elements of an action.

Here’s what I mean by this: Suppose someone files a complaint for negligence. In that complaint, the plaintiff must allege all of the elements of negligence, and the elements must be applied to the defendant or defendants.

For example, in the above negligence lawsuit, let’s say that the defendant hit the plaintiff with his car. The plaintiff would have to allege all of the elements of negligence and apply them to the defendant, such as the following:

1. Defendant owed to plaintiff a duty of care
2. Defendant breached that duty of care
3. Plaintiff suffered injuries
4. These injuries were the result of defendant’s breach of duty

As mentioned earlier, Rule 12(b)(6) motions are rarely successful, in no small part because pleading requirements are generally quite liberal. In spite of these lax requirements, however, the above pleading example would be insufficient to defeat a 12(b)(6) motion.

The pleading is insufficient because all it does is, in court parlance, “merely recite bare legal conclusions.”

The complaint must do much more than this. Specifically, a factual basis for the claim must be established by the complaint.

Using the same example as above, the complaint must also include details about how the defendant was negligent, and how this negligence caused the plaintiff’s injuries.

Perhaps the defendant ran a red light and collided with the plaintiff’s vehicle or the plaintiff herself. Perhaps the collision caused the plaintiff to break her leg or worse. Complaints must contain factual allegations such as these to be considered as having “stated a claim upon which relief can be granted.”

Further, the more factual detail that can be included in the complaint, the better.  One reason for this is to ensure that you have sufficiently pleaded the elements of the causes of action listed in your complaint. Another reason — and an important one at that — is the standard that is used to review 12(b)(6) motions. Specifically, when deciding such a motion, the court assumes all factual allegations contained in the complaint to be true, giving the plaintiff the full benefit of the doubt.

Recognizing this, it is vital to include every fact that could in any way be relevant to give the court as complete a picture as possible.

Even if you have perfectly pleaded the elements of a given cause of action and included a complete and detailed set of facts, the Rule 12(b)(6) motion could succeed nonetheless. Although less commonly the reason for the success of such a motion, the court could decide that the pleaded cause of action isn’t recognized by the law.

Using our car accident example, if the plaintiff claimed assault and battery instead of negligence, but all of the facts remained the same (i.e. the car accident truly was an accident and there was no intent to cause injury to the plaintiff), then the 12(b)(6) motion, at least in regards to the assault and battery claims, would succeed.

Practically speaking, the judge would usually give the plaintiff leave to amend if a legal cause of action was apparent from the facts, but the 12(b)(6) motion would still technically be successful.

In any legal case, it’s important to make sure that the facts alleged in the complaint are well-supported and accurate. Save yourself time and find mistakes before they happen with more efficient legal research tools from Thomson Reuters.

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:

(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.

(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made:

(1) before a responsive pleading is served; or

(2) if there is no responsive pleading, before evidence is introduced at a hearing or trial.

(d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court:

(1) may order the plaintiff to pay all or part of the costs of that previous action; and

(2) may stay the proceedings until the plaintiff has complied.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Dec. 4, 1967, eff. July 1, 1968; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 30, 2007, eff. Dec. 1, 2007.)

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