4.2 Rule 12 Motions, Summary Judgment, Defaults & Dismissals

4.2 Rule 12 Motions, Summary Judgment, Defaults & Dismissals

Many cases end without a trial. The MBE tests the motions that make that happen: Rule 12 motions aimed at the face of the pleadings, summary judgment on the record, defaults when a defendant does not respond, and dismissals by the plaintiff or the court. It also tests the strict Rule 12 waiver rules that can forfeit a defense before the merits are ever reached.

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Defendant's Responses: Deadlines and Rule 12 Motions

Upon being served with a summons and complaint, a defendant has two choices: respond by filing a pre-answer motion under Rule 12, or serve an answer.

Response Deadlines

• Standard Service: A defendant must serve an answer or Rule 12 motion within 21 days after being served with the summons and complaint (Rule 12(a)(1)(A)(i)).
• Waived Service (Rule 4(d)): If the defendant timely returns a waiver of service requested under Rule 4(d), the deadline extends to 60 days after the request was sent, or 90 days if the defendant was addressed outside any judicial district of the United States.
• Effect of a Rule 12 Motion: Serving a pre-answer Rule 12 motion alters these time periods. If the court denies the motion or postpones its disposition until trial, the defendant must serve its responsive pleading within 14 days after notice of the court's action (Rule 12(a)(4)(A)). If the court grants a motion for a more definite statement under Rule 12(e), the responsive pleading must be served within 14 days after the more definite statement is served.

Pre-Answer Motions Under Rule 12(b)

A defendant may assert seven specific defenses by pre-answer motion under Rule 12(b):

1. 12(b)(1): Lack of subject-matter jurisdiction;
2. 12(b)(2): Lack of personal jurisdiction;
3. 12(b)(3): Improper venue;
4. 12(b)(4): Insufficient process (a defect in the summons document itself);
5. 12(b)(5): Insufficient service of process (a defect in the manner or method of delivery);
6. 12(b)(6): Failure to state a claim upon which relief can be granted; and
7. 12(b)(7): Failure to join a required party under Rule 19.

The Strict Consolidation and Waiver Rules (Rule 12(g) & 12(h))

The FRCP creates a rigid categorization of Rule 12(b) defenses that is one of the most frequently tested concepts on the MBE:

+-----------------------------------------------------------------------------------+
|                             RULE 12 DEFENSE CATEGORIES                            |
+-----------------------------------------------------------------------------------+
| Category 1: Waivable Defenses [Rules 12(b)(2)-(5)]                                |
| - Lack of personal jurisdiction (12(b)(2))                                       |
| - Improper venue (12(b)(3))                                                      |
| - Insufficient process (12(b)(4))                                                |
| - Insufficient service of process (12(b)(5))                                     |
| RULE: Must be raised in the FIRST Rule 12 response (pre-answer motion or answer). |
| If omitted from the first response, they are PERMANENTLY WAIVED.                 |
+-----------------------------------------------------------------------------------+
| Category 2: Defenses Preserved Through Trial [Rules 12(b)(6)-(7)]                 |
| - Failure to state a claim upon which relief can be granted (12(b)(6))            |
| - Failure to join a party under Rule 19 (12(b)(7))                               |
| RULE: May be raised in any pleading allowed under Rule 7(a), by motion for       |
| judgment on the pleadings under Rule 12(c), or at trial on the merits.            |
+-----------------------------------------------------------------------------------+
| Category 3: Never-Waivable Defense [Rule 12(b)(1)]                                |
| - Lack of subject-matter jurisdiction (12(b)(1))                                 |
| RULE: May be raised at ANY TIME by any party or sua sponte by the court,          |
| including for the first time on appeal or in the Supreme Court.                   |
+-----------------------------------------------------------------------------------+

Under Rule 12(g)(2), if a defendant makes a pre-answer motion under Rule 12, it must consolidate all available Rule 12 defenses into that single motion. If the defendant omits personal jurisdiction, venue, process, or service from that first motion, it cannot raise them in a second pre-answer motion or even in its subsequent answer. They are forever gone.

Other Pre-Answer Devices

• Motion for a More Definite Statement (Rule 12(e)): A party may move for a more definite statement of a pleading to which a responsive pleading is allowed if the pleading is "so vague or ambiguous that the party cannot reasonably prepare a response." The motion must be made before filing a responsive pleading and must point out the defects and the details desired.
• Motion to Strike (Rule 12(f)): The court may strike from a pleading an insufficient defense or any "redundant, immaterial, impertinent, or scandalous matter." The court may act on its own or on a motion made by a party either before responding to the pleading or within 21 days after being served if no response is allowed.

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More Rule 12 Details

• Judgment on the pleadings (Rule 12(c)): After the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings. The standard mirrors Rule 12(b)(6) when the motion raises failure to state a claim.
• Conversion (Rule 12(d)): If matters outside the pleadings are presented on a Rule 12(b)(6) or 12(c) motion and the court does not exclude them, the motion must be treated as one for summary judgment, and all parties must get a reasonable opportunity to present pertinent material.
• The amendment cushion (Rule 12(h)(1)(B)): A defendant who answers without a Rule 12 motion and leaves out a waivable defense can still preserve it by amending the answer as a matter of course within the Rule 15(a)(1) window. Once a defendant files a Rule 12 motion that omits the defense, however, no later amendment revives it (Rule 12(h)(1)(A)).
• Pretrial hearing (Rule 12(i)): If a party so moves, Rule 12(b)(1)–(7) defenses and Rule 12(c) motions must be heard and decided before trial unless the court orders a deferral until trial.

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Summary Judgment (Rule 56)

Summary judgment is a pre-trial dispositive mechanism designed to pierce the pleadings and assess the proof to determine whether a trial is necessary. Under Rule 56(a):

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

The Evidentiary Standards and Burden Shifting

• Material Fact: A fact is material if it might affect the outcome of the suit under the governing substantive law.
• Genuine Dispute: A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party (Anderson v. Liberty Lobby, Inc. (1986)).
• The Celotex Framework: The moving party bears the initial burden of informing the court of the basis for its motion. Under Celotex Corp. v. Catrett (1986), if the non-moving party bears the burden of persuasion at trial, the movant can satisfy its initial burden in one of two ways: (1) submitting affirmative evidence negating an essential element of the non-movant's claim; or (2) demonstrating that the non-movant's record evidence is insufficient to establish an essential element. The burden then shifts to the non-movant to come forward with specific, admissible evidence showing a genuine dispute for trial.
• Evidentiary Support: Parties cite to depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers. Affidavits and declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify (Rule 56(c)(4)).

Judicial Restraint: No Credibility Weighing

When ruling on summary judgment, the court must view all evidence and draw all justifiable inferences in the light most favorable to the nonmoving party. The judge cannot weigh the evidence, make credibility determinations, or choose between competing factual narratives. If a credible witness asserts fact X under oath and an opposing witness asserts not-X, a genuine factual dispute exists that must be resolved by the factfinder at trial.

Timing of Motion

Unless a different time is set by local rule or court scheduling order, a party may move for summary judgment at any time until 30 days after the close of all discovery (Rule 56(b)).

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More Summary Judgment Details

• Partial summary judgment: A party may move for summary judgment on a claim or defense, or on part of one (Rule 56(a)).
• Need for discovery (Rule 56(d)): If the nonmovant shows by affidavit or declaration that it cannot yet present facts essential to its opposition, the court may defer or deny the motion, allow time for discovery, or issue another appropriate order.
• Court-initiated rulings (Rule 56(f)): After giving notice and a reasonable time to respond, the court may grant summary judgment for a nonmovant, grant it on grounds not raised by a party, or consider summary judgment on its own.
• Narrowing the case (Rule 56(g)): If the court does not grant all the relief requested, it may enter an order stating any material fact that is not genuinely in dispute and treating that fact as established.
• Blatant contradiction: The court must draw reasonable inferences for the nonmovant (Tolan v. Cotton, 2014), but it need not adopt a version of events that is blatantly contradicted by the record, such as an unchallenged video (Scott v. Harris, 2007).

Defaults and Default Judgments (Rule 55)

1. Entry of default (Rule 55(a)): When a party against whom affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
2. Default judgment by the clerk (Rule 55(b)(1)): If the claim is for a sum certain (or a sum that can be made certain by computation), the clerk—on request with an affidavit of the amount due—must enter judgment against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
3. Default judgment by the court (Rule 55(b)(2)): In all other cases, the party must apply to the court. If the defaulting party has appeared, it must be served with written notice of the application at least 7 days before the hearing. The court may hold hearings to determine damages or establish the truth of allegations.
4. Setting aside (Rule 55(c)): The court may set aside an entry of default for good cause and may set aside a default judgment under Rule 60(b).
5. United States: A default judgment may be entered against the United States only if the claimant establishes a claim or right to relief by evidence that satisfies the court (Rule 55(d)).

Dismissals (Rule 41)

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Summary Table: Rule 12(b) Defenses: Timing, Waiver, and Motion Requirements