12b Motion, Rule

Short form for a Motion-to-Dismiss under the Federal Rules of Civil Procedure. Rule 12, subsection (b) sets forth a list of grounds under which a defendant can move to have a case dismissed because the complaint is facially deficient (such a motion is also known as a demurrer, though strictly a demurrer can also be filed at the end of a trial). The grounds set forth in Rule 12(b) are:

  1. lack of jurisdiction over the subject matter;
  2. lack of jurisdiction over the person;
  3. improper venue (i.e., wrong courthouse);
  4. insufficiency of process (i.e., the papers filed are not complete in some manner);
  5. insufficiency of service of process (the defendant(s) was(were) not properly served);
  6. failure to state a claim upon which relief can be granted;
  7. failure to join a necessary party.

Of the Rule 12(b) motions, Rule 12(b)(5) and Rule 12(b)(6) motions are probably the most common. A plaintiff can also move to dismiss Affirmative Defenses  Rule 12(b)(6) usually arises when a plaintiff brings a claim that requires it to show a set of factual elements to succeed, but the factual assertions made by the plaintiff are incomplete, i.e., they lack one or more of the elements and historically (and in some state and common law courts was known as a Demurrer. Normally in response to a Rule 12(b)(4)-(7) motion the court will offer the plaintiff the opportunity to re-file its claim, if it can remedy the defects. A Rule 12 motion must usually be filed before the defendant answers the complaint. See Motion.

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