Motion to Dismiss
A motion to dismiss under FRCP Rule 12(b) is a pre-answer motion challenging the complaint on procedural or substantive grounds, including lack of jurisdiction, improper venue, insufficient service, or failure to state a claim upon which relief can be granted.
Exam Tip
12(b)(1) SMJ = NEVER waived. 12(b)(2)-(5) = waived if not in first motion. 12(b)(6) = plausibility (Twombly/Iqbal). California equivalent = demurrer.
What is a Motion to Dismiss?
A motion to dismiss under Federal Rule of Civil Procedure 12(b) allows a defendant to challenge a lawsuit early, before filing an answer, on various procedural and substantive grounds. It is the federal equivalent of California's demurrer.
The Seven Rule 12(b) Defenses
| Defense | Grounds |
|---|---|
| 12(b)(1) | Lack of subject matter jurisdiction |
| 12(b)(2) | Lack of personal jurisdiction |
| 12(b)(3) | Improper venue |
| 12(b)(4) | Insufficient process |
| 12(b)(5) | Insufficient service of process |
| 12(b)(6) | Failure to state a claim |
| 12(b)(7) | Failure to join required party under Rule 19 |
Waiver Rules (12(h))
| Defense Type | Waiver Rule |
|---|---|
| 12(b)(2)-(5) | Waived if not raised in first motion or responsive pleading |
| 12(b)(6), (7) | May be raised through trial |
| 12(b)(1) | Never waived; may be raised anytime |
12(b)(6) Standard (Twombly/Iqbal)
| Step | Analysis |
|---|---|
| Step 1 | Identify and discard conclusory allegations |
| Step 2 | Assess whether remaining facts state "plausible" claim |
| Standard | "Facial plausibility" - more than possible, less than probable |
Key Principles
- Court accepts all well-pleaded facts as true
- Draws all reasonable inferences in plaintiff's favor
- May consider complaint, attached documents, incorporated documents
- Generally cannot consider matters outside the pleadings
California State Court Equivalent
| Federal | California |
|---|---|
| 12(b)(6) Motion | Demurrer (CCP Section 430.10) |
| 12(b)(2) Motion | Motion to Quash (CCP Section 418.10) |
Timing
| Federal Rule | Deadline |
|---|---|
| Pre-Answer Motion | 21 days after service (or 60 days if waiver of service) |
| Opposition | 21 days before hearing (local rules vary) |
| Reply | 14 days before hearing |
Landmark Cases
- Bell Atlantic v. Twombly (2007): "Plausibility" standard replaces "no set of facts"
- Ashcroft v. Iqbal (2009): Two-step analysis; applies to all civil cases
- Conley v. Gibson (1957): Old "no set of facts" standard (overruled)
Study This Term In
Related Terms
Personal Jurisdiction
Personal jurisdiction is the court's power over a particular defendant, requiring that the defendant have sufficient minimum contacts with the forum state such that exercising jurisdiction does not offend traditional notions of fair play and substantial justice under the Due Process Clause.
Venue
Venue under 28 U.S.C. Section 1391 determines the proper geographic location (judicial district) for a federal lawsuit, based on where defendants reside (if all in same state), where events occurred, or as a fallback, where any defendant is subject to personal jurisdiction.