Rule 12(b) Motion to Dismiss

Question 1

Motion to Dismiss

Answer 1

A claim can be dismissed if the complaint either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim

Question 2

Well-Pleaded Facts

Answer 2

In deciding a motion under Rule 12(b), the court treats all well-pleaded facts of the complaint as true and resolves all doubts and inferences in P’s favor

Question 3

Complaint Allegations

Answer 3

In ruling on the motion, the court may consider only the allegations in the complaint

Question 4

Motion to Dismiss and Summary Judgment

Answer 4

If the court considers ANY EVIDENCE OUTSIDE OF THE COMPLAINT, it must be treated as a motion for summary judgment

Question 5

What Happens if Motion to Dismiss is Granted?

Answer 5

Claim is dismissed

P may generally amend the pleading and continue the action

Question 6

What Happens if Motion to Dismiss is Denied?

Answer 6

D may either answer the claim or allow a default judgment to be entered and appeal