The following paragraphs contain calculators for pertinent motion deadlines in the Federal Rules of Civil Procedure. Note that many of these rules can be modified by stipulation, a court’s local rules, a judge’s standing order, or a case-specific court order. Always check the Federal Rules of Civil Procedure, local rules, and judge’s orders, each of which are available on the relevant court’s website or in your case file on PACER.
Rule 12(b) Motions
A defendant normally responds to a plaintiff’s complaint by filing an answer pursuant to Federal Rule of Civil Procedure 12(a). However, the rules provide for another option for defendants who wish to make preliminary objections under certain circumstances. In these cases, a defendant may avoid answering immediately by filing a motion to dismiss under Federal Rule of Civil Procedure 12(b) (see Rule 12(b) for a list of the defenses that may be raised in a 12(b) motion to dismiss).
A motion under Rule 12(b) (like the traditional demurrer) is due before serving a responsive pleading. Therefore, it must be filed no later than 21 days after the operative complaint, counterclaim or crossclaim is served. In the case that no responsive pleading is due, Rule 12(b) motions can be made anytime up to and including trial. Fed. R. Civ. P. 12(b).
These “pre-answer motions” should be made at the outset of the case. A successful 12(b) motion may eliminate a defendant’s need to answer altogether, thereby providing a strong tactical advantage. For example, when a court lacks subject matter jurisdiction over the actions making the basis of the complaint (Rule 12(b)(1)), the court has no power to render a judgment. Accordingly, there is no reason for a defendant to put forth defenses to an action that cannot be maintained in the first place. Similar arguments exist where the court is not a proper venue (Rule 12(b)(2)) or the court lacks personal jurisdiction over the defendant (Rule 12(b)(3)). Other defenses highlight defects in the method by which the plaintiff initiated the action. Insufficient service of process (Rule 12(b)(5)) challenges the manner in which the plaintiff served the complaint, and arguments concerning failure to join a necessary party (Rule 12(b)(7)) attack the scope of the plaintiff’s suit.
A 12(b)(6) dismissal, which replaced the common law demurrer, attacks the substantive merits of the complaint. A defendant who moves for dismissal in this manner says the plaintiff “failed to state a claim upon which relief can be granted,” meaning even if the plaintiff were to prove the allegations in the complaint, they still would not be entitled to any relief. An example would be a suit for defamation in a jurisdiction that does not recognize a suit for defamation unless a plaintiff can prove a defendant published the defamatory statement. If publication of the defamatory statement is required and the plaintiff cannot alleged it, the plaintiff is not entitled to the relief requested and the court should dismiss the matter.
Rule 12(e) Motion for More Definite Statement
Rule 12(e) motions for a more definite statement are due before serving a responsive pleading. Therefore, they are due no more than twenty-one (21) days after the pleading to which they pertain is served. If no responsive pleading is due, Rule 12(e) motions for a more definite statement are not contemplated. Fed. R. Civ. P. 12(e).
A motion for more definite statement may be used in addition, or in the alternative, to a 12(b)(6) motion. A defendant may make a motion for a definite statement of a complaint to which an answer is allowed, but which is so vague or ambiguous that the defendant cannot reasonably prepare a response.
Rule 12(f) Motion to Strike
Rule 12(f) motions to strike are due before serving a responsive pleading. Therefore, they are due no more than twenty-one (21) days after the operative complaint, counterclaim or crossclaim is served. If no responsive pleading is due, Rule 12(f) Motions to Strike are due twenty-one (21) days after the pleading to which they relate. Fed. R. Civ. P. 12(b), (e), (f).
When a defense has no grounds or when there has been something included in the pleading that is inappropriate or has no bearing on the case. This prevents those statements from being entered into official court records.
Motions, Notices of Hearing, and Affidavits (In General)
Written motions are due served at least fourteen (14) days before the scheduled hearing, unless the rules set a different time. Fed. R. Civ. P. 6(c)(1).) However, note that local rules often supersede this rule.
Oppositions to Motions
Deadlines for oppositions to motions are found in the court’s local rules. However, affidavits filed in opposition to motions are due at least seven (7) days before the hearing. Fed. R. Civ. P. 6((c)(2).
Summary Judgment Motions
Summary judgment motions are due within thirty (30) days after the close of all discovery. Fed. R. Civ. P. 56(b).
What is a motion for summary judgment?
A motion for summary judgment can be used to end the dispute over that portion of the case immediately. Even if everything the opponent is arguing is factually true, they still cannot win as a matter of law.
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.
- Contrast a summary judgment motion from a 12(b)(6) motion:
- 12(b)(6) dismisses the entire case (or that claim), and it is saying that whatever the opponent is claiming is not actually legally correct. This is done once the defendant is served with the plaintiff’s complaint, and that is the only filing entered unless it is made concurrently with an answer. A 12(b)(6) motion cannot challenge any facts o the complaint. If under 12(b)(6) you attach any affidavit, document, evidence, this changes it to a Rule 56 evaluation.
- A Rule 56 motion for summary judgment does not have to address an entire claim. It can address merely a portion of that claim, and it is saying that even if all the facts are true, that still does not meet the required elements for proving a claim or defense. Rule 56 takes into account all of the discovery.
Who may move for summary judgment?
Either party, or in multiparty litigation, any party may move for summary judgment.
When may a party move for SJ?
As noted above, a party may move for summary judgment any time until 30 days after the end of discovery (because by then, all the material facts of the case should be known). However, courts may modify this date in their scheduling orders.
A summary judgment motion is analytically similar to a directed verdict motion and a JNOV motion. The difference among these three motions is the timing:
- Before case (SJ), after close of P’s case or D’s case (DV), after verdict (JNOV – judgment non obstante veredicto).
Rule 56(g) allows the granting of partial motion for summary judgment, or the judge to grant summary judgment only as to certain issues of material fact or certain claims. When a plaintiff seeks summary judgment, it is often as to liability only (not damages).
Rule 56(a) mandates the following requirements for summary judgment motions:
- After adequate time for discovery and upon motion,
- Against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, AND
- on which that party will bear burden of proof at trial, THEN
- summary judgment must be entered.
Links to Deadline Calculator Pages for Pertinent Federal Court Deadlines: