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When Can a 12b6 Motion Be Raised?

If a defendant wants to file a 12b6 motion, they must do so after the plaintiff serves them with the legal filing that initiated the case (generally a complaint or summons) but before filing a responsive pleading to defend themselves against the claims the plaintiff is making against them. By filing a 12b6 motion, a defendant asks the court to throw out the case at the very beginning of the process.

What Is a 12b6 Motion?

A 12b6 motion is a type of motion to dismiss that a defendant can file in a federal civil lawsuit. 12b6 motions get their name from Rule 12(b)(6) of the Federal Rules of Civil Procedure, which authorizes the use of a 12b6 motion. With a 12b6 motion, the defendant asks the court to dismiss a case against them for “failure to state a claim upon which relief can be granted.” This means that, in the initial complaint, the plaintiff did not present sufficient factual assertions to make a valid legal claim, even if every single allegation was true. 

In reviewing a 12b6 motion, a judge does not evaluate the accuracy of the facts in the complaint. Instead, all facts are considered to be true and viewed in the light most favorable to the plaintiff. A 12b6 motion can only be successful if, when viewing the complaint in the best possible light, the plaintiff’s allegations do not form the basis of a legitimate cause of action.

While 12b6 motions are rarely successful, when they are, it is generally because the complaint did not allege all of the required elements of a recognized cause of action. For example, to sufficiently plead a defamation case, a complaint would have to allege each of the following elements:  

  • The defendant made a false statement
  • The defendant published or communicated that statement to another
  • The defendant was at least negligent in making the statement
  • The statement caused damages to the plaintiff

In addition to alleging these elements, the complaint must also include factual assertions to back up each element. If a court finds that a pleading falls short of this standard, the case might be dismissed, or the judge might allow the plaintiff to amend the complaint to correct the deficiency.  

Can the Plaintiff File a Motion To Dismiss?

While motions to dismiss are generally filed by defendants, since plaintiffs are the ones who filed the case in the first place, plaintiffs can also file motions to dismiss if they no longer wish to pursue the case. This might occur if the parties have reached a settlement agreement, there is some sort of procedural defect in the case, or the plaintiff want to move their case to another court or otherwise voluntarily dismiss their claim.  

What Is a 12b6 Dismissal on Merits?

When a 12b6 dismissal is issued “on the merits,” the plaintiff is forever barred from pursuing that claim again. 

While judges generally issue 12b6 dismissals “without prejudice,” which means that the plaintiff can amend the complaint and refile it, in some cases, they may grant a 12b6 motion to dismiss without allowing the plaintiff to amend their complaint. In these situations, the case is dismissed “on the merits,” which means that the plaintiff cannot file an amended complaint. While plaintiffs may be able to pursue a different legal claim, depending on the circumstances, they won’t get another chance to argue the same claim again.

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