In permitting plaintiffs’ claims to survive a 12(b)(6) motion in American Nurses, Judge Posner reminded the plaintiffs that they “ha[d] a tough row to hoe. They may lose eventually on summary judgment . . . .” American Nurses Ass’n v. Illinois, 783 F.2d 716, 730 (7th Cir. 1986). Summary judgment played an important role in the debate between Justice Souter and Justice Stevens in Twombly as well. According to Justice Stevens, some of the problems that the majority identified can be solved not by imposing a plausibility standard under FRCP 12(b)(6), but instead by “careful scrutiny of evidence at the summary judgment stage.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 573 (2007). But speaking for the majority, Justice Souter responded that summary judgment could not achieve the same benefits as a stricter review under 12(b)(6), because “the problem of discovery abuse cannot be solved by ‘careful scrutiny of evidence at the summary judgment stage . . . .’” Id. at 559.
What is the relationship between Rule 12(b)(6) and summary judgment? Both provide the court and litigants with the opportunity to dismiss non-meritorious claims. Indeed, the federal system provides litigants with many opportunities to dismiss such claims, including: Rule 12(b)(6) (FRCP 12); Summary Judgment (FRCP 56); and Judgment As A Matter Of Law (FRCP 50). Furthermore, within judgments as a matter of law (JMOL), there are two forms: Directed Verdict, and Judgment Notwithstanding The Verdict (JNOV)).
You are not expected to yet recognize these motions or understand their relationship. But all of these motions represent tools in the litigant’s procedural tool box, enabling defendants to seek the dismissal of a claim at various stages during the trial. As you learn more about each, think about the stages of litigation during which these motions may be brought, about the different standards that apply to each, and about how the former does and should affect the latter.