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.
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