Pretrial Motions

Question 1

Standard for 12(b)(6)

Answer 1

Even if facts are true, no liability results, or the complaint is self-defeating.

Timing: can be made at any time.

Question 2

Insufficient process

Answer 2

12(b)(4)

Refers to defects in the summons, complaint, and/or cover sheet (etc.)

Question 3

12(b)(1)-(7)

Answer 3

12(b)(1) - SMJ

(2) PJ
(3) Venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim
(7) Failure to properly join under Rule 19

Question 4

Which pretrial motions are waivable?

Answer 4

12(b)(2), (3), (4), (5)

Note: notice of removal does not waive PJ

Question 5

Timing for pretrial motions

Answer 5

Must respond to service within 21 days (60 if waived, 90 if waived and foreign)

If removed, then by the later of 21 days after service or 7 days after notice of removal. Remand notice does not toll these time limits.

14 days to file answer (or other responsive pleading) after judge rules on a pretrial motion.

Question 6

Motion for Judgment on the Pleadings

Answer 6

Rule 12(c)

Timing: after pleadings closed, but early enough not to delay trial

Grounds:

(1) Based on pleadings, movant wins as matter of law
- -Either party can so move
- -Can’t challenge facts

Question 7

Converting 12(b)(6) or 12(c) into summary judgment

Answer 7

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.

Exception: an exhibit attached to a pleading becomes part of the pleading and doesn’t trigger conversion.

Question 8

Motion for more definite statement

Answer 8

Rule 12(e)

Can only file if there is a response due (i.e. you can’t file a response b/c the pleading is so vague/unclear).

Must specifically request what you want.

Question 9

Motion to strike

Answer 9

Rule 12(f)

Timing: prior to filing a responsive pleading OR within 21 days of receipt of offending pleading

Standard:
(1) Redundant, immaterial, inflammatory, scandalous (e.g. the idiot defendant…)

(2) Insufficient defense (e.g. raised contributory negligence, but state law doesn’t allow that)
(3) Technical defects (1000 page complaint, untimely, violates formatting rules)