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Last updated March 22, 2009

F.R.C.P. 12(b) Motions

FRCP stands for the Federal Rules of Civil Procedure. We mention them in your Set Up procedure.. If you haven't downloaded them, do so.

Get real familiar with FRCP 12(b). It can help you when you don't expect it. A Rule 12(b) motion must be made before answering if a responsive pleading is allowed.

In almost every federal jurisdiction, before you file any motion with the court you must first confer with the other party, or their attorney if they have one, before filing the motion. See your local rules, usually Rule 7.1 or there about. The purpose of this is to streamline the paperwork and avoid delays. The exceptions to this rule are usually motions filed under FRCP 12 and FRCP 56.

The idea of a FRCP 12(b) motion to dismiss is that the complaint — or more specifically, the claim — is so lacking in merit that no answer is necessary. An FRCP 12(b) motion to dismiss a fundamentally meritorious claim based on technical deficiencies may not be worth the price of the motion and of the defense’s credibility with the judge. Basically, do not file one just to delay things. Under FRCP 12(b), before answering a complaint or before responding to a motion that has been filed you can file a motion for one of seven reasons:

  1. Lack of Jurisdiction over Subject Matter - We have discussed jurisdiction earlier. This defense may be raised at any time, even after the trial.
  2. Lack of Jurisdiction over the Person (or company) - We have discussed jurisdiction earlier. Considered waived unless asserted in a single pre-answer motion.
  3. Improper Venue - similar to Jurisdiction. Considered waived unless asserted in a single pre-answer motion.
  4. Insufficiency of Process - we're really not sure about this one. Considered waived unless asserted in a single pre-answer motion.
  5. Insufficiency of Service of Process - you didn't properly serve them. Considered waived unless asserted in a single pre-answer motion.
  6. Failure To State A Claim Upon Which Relief Can Be Granted
  7. Failure To Join A Party Under Rule 19 - you have to sue all parties involved

Failure To State A Claim Upon Which Relief Can Be Granted
#6 seems to be the important one but it isn't often granted. If your opponent has claimed you have violated some law and has not made their case you can submit an F.R.C.P. 12(b)(6) motion to dismiss for Failure To State A Claim Upon Which Relief Can Be Granted but many judges do not like to dismiss under this one.

Conley v. Gibson -- USSC 1957: In appraising the sufficiency of the complaint, we follow the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove not set of facts to support the claim. Rules do not require a claimant to set out in detail the facts upon which he bases his claim…only a short and plain statement of the claim. So long as gives defendant fair notice of what the claim is and grounds upon it rests. FRCP 8(f) All pleading shall be so construed as to do substantial justice.

Dioguardi v. Durning -- 2nd Circuit 1944: Under new rules, there is no pleading requirement of stating facts sufficient to constitute a cause of action…only a short and plain statement. FRCP 12(b)(6) is for failure to state a claim not a cause of action.

Partridge v. Two Unknown Police Officers -- 5th Circuit 1986: Must accept all well pleaded facts as true and view them in the light most favorable to plaintiff. Cannot uphold dismissal unless it appears beyond doubt that plaintiff can prove no set of facts in support of claim.

An example of this is the Alex Grey case we have referenced. We did a quick copyright office sreach for his registered copyrights. From 1978 through 2003 he has only 9 copyrights despite his prolific output and two of them are not artwork related. It appears he has not registered the works at issue in the lawsuit.

That is a perfect place for a F.R.C.P. 12(b)(6) motion because copyright law requires prior registration before one can file a lawsuit. Alex Grey's lawyer failed to state a claim under which they can prevail because there is no prior registration of the copyrights at issue. When considering a 12(b)(6) motion, the court presumes that all the allegations of the complaint are true; it resolves all doubts or inferences in the plaintiff’s favor; and it reads the complaint in the light most favorable to the plaintiff. The burden of proof on such a motion is on the party making it. No material from outside the pleadings may be considered or the motion will be considered one for summary judgment.

A 12(b)(6) motion may be filed at any time in the proceedings, even at trial. A 12(b)(6) motion alleges that based on the facts alleged in the complaint, there is no legal theory under which plaintiff can obtain relief. The motion is not granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." [Conley v. Gibson, 355 U.S. 41 (1957)] If granted, the complaint is typically dismissed without prejudice so that the plaintiff can amend it.

Pursuant to FRCP 12(a)(4) filing an FRCP 12(b) motion to dismiss stops the clock until there is a ruling. It has been held that a motion to dismiss one count of a 10-count complaint stays the time to answer the entire complaint.

After service of all the pleadings in a case, either side may seek judgment on the pleadings under FRCP 12(c). Upon submission of materials in addition to the pleadings, the motion becomes one for summary judgment.

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District, which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here. These pages are not a complete analysis of everything that can happen. These are intended a guide and starting point. Always consult competent legal help.

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