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Civil Procedure 2022

Motion to Dismiss for Failure to State a Claim, More Pleadings, and Other FRCP 12 Motions

This unit focuses on the Motion to Dismiss, particularly the FRCP 12(b)(6) “Motion to Dismiss for failure to state a claim upon which relief can be granted,” with a little bit of material on some other FRCP 12 motions. In one sense, we are “resuming” where we left off in Unit 2 with the initial pleadings. You will recall that in response to a Complaint, the Defendant has the option of either filing an Answer or a Motion to Dismiss. This unit further examines that second option. I say “further” because the last several units have also taught you about various grounds for a Motion to Dismiss in FRCP 12(b)

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process; and

(5) insufficient service of process.


7.1 Pleading Special Matters will briefly teach you about areas where the FRCP system or Congress has imposed a special (typically heightened) pleading requirement, including special damages, fraud, and the Private Securities Litigation Reform Act. We will contrast all this with “general” (or “regular”) pleading rules that trans-substantively apply to everything else—the main focus of this unit.


7.2 “Regular” Pleading & FRCP 12(b)(6) Motions concerns the circumstances under which a court will dismiss a case under an FRCP 12(b)(6) motion. It begins by showing you a real-life example of such a motion.

In 2007 the Supreme Court decided a case that some argue revolutionized our understanding of what a party must plead to survive an FRCP 12(b)(6) motion. This unit teaches you about the pre-2007 landscape through a look at the relevant rules, the forms which at one point were examples of the bare minimum that would suffice, and a case that is viewed as the high watermark of leniency as to a pleading party: Dioguardi v. Durning.

We will then transition to discussing the post-2007 landscape through the two main cases from the Supreme Court: Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal (sometimes referred to collectively as “TwIqbal”). We will have a wide-ranging discussion in class of the two decisions as system designers on the optimal instructions for courts when considering whether to dismiss a case under FRCP 12(b)(6). I will also give you portions of an article critiquing how the Iqbal court characterized the facts in the 9/11 detention decisions. I will then give you a very rough view of where the courts are now and a peek at some of the scholarship that has attempted to empirically determine whether these two decisions have made a difference for plaintiffs overall, and for civil rights plaintiffs in particular.


7.3 Other Motions Attacking Pleadings very briefly introduces you to FRCP 12(c)–(f), with a focus on the Motion to Strike.


7.4 Consolidation, Joinder, and Waiver of FRCP 12 Motions alerts you to an easy mistake to make as a litigant: inadvertently waiving an FRCP 12 motion by failing to raise it in the proper way or time.