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.
This book, and all H2O books, are Creative Commons licensed for sharing and re-use. Material included from the American Legal Institute is reproduced with permission and is exempted from the open license.