Rule 12 Flashcards
What are the Rule 12 motions?
Before ANSWER, pre-answer Rule 12 motion to dismiss under the federal rules. Those defenses include: (i) lack of subject-matter jurisdiction; (ii) lack of personal jurisdiction; (iii) improper venue; (iv) insufficient process; (v) insufficient service of process; (vi) failure to state a claim upon which relief can be granted; and (vii) failure to join a party needed for a just adjudication.
If party’s response relies on material outside the pleadings, then they should file a motion for summary judgment, such as attaching an affidavit with the canceled checks.
What is a motion and the motion failure to state a claim?
Motions are typically contained in papers that separate from the pleadings. They can be heard and/or decided separately from the merits of the case, or on certain occasions, heard at the time of trial and disposed of then. Certain defenses may be raised either in the answer or by motion. These defenses are known as Federal Rule of Civil Procedure (FRCP) 12(b) defenses. They are directed solely at the pleading and must be decided solely by reference to them.
If the defendant believes that the plaintiff’s complaint does not state a legally sufficient claim, the defendant can make an FRCP 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For the motion to be successful, it must demonstrate that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.
