1. law, govt and politics

Fundamentals of Rule 12
FBA NO Chapter -- Federal Practice Series
Thursday, March 26, 2015
The Honorable Carl Barbier, United States District Judge
Donna Phillips Currault, Gordon, Arata, McCollam, Duplantis & Eagan, LLC
Rule 12 dictates when a responsive pleading is due, certain defenses that may be made
before filing a responsive pleading, and when and how those defenses may be raised.
I.
Rule 12(a)
A. When is a responsive pleading due?
1. Within 21 days of service OR 60 days after the sending of a request for waiver
(90 if sent outside of any judicial district). FED. R. CIV. P. 12(a)(1).
a. EDLA Local Rule 7.8 – 21-day extension allowed by Ex Parte Motion
- Only one automatic extension
- Cannot have an objection filed on record (need to check PACER)
- Subsequent extensions by motion and must demonstrate good cause
b. Rule 7.8 Motion should state:
- First extension
- No objection filed in the record
2. For the United States, government, agencies, officers and employees sued in
official capacity, 60 days after SERVICE on the U.S. Attorney. FED. R. CIV. P.
12(a)(2).
3. For the U.S. officers or employees sued in individual capacity relating to job
duties, 60 days after SERVICE on the individual or U.S. Attorney, whichever is
later. FED. R. CIV. P. 12(a)(3).
B. Effect of a Rule 12 Motion - Absent a court order setting a different time, a Rule 12
motion extends the time to file a responsive pleading until 14 days after the court’s denial
of the motion or deferral to trial or, if more definite statement ordered, 14 days after
service of the more definite statement. FED. R. CIV. P. 12(a)(4).
1. For a Partial Motion to Dismiss seeking dismissal of some, but not all claims, the
majority of the courts (including this court) hold that the partial motion suspends the
time to answer even those claims not subject to the motion. Gamble v. Boyd Gaming
Corp., No. 2:13-cv-01009-JCM-PAL, 2014 WL 1331034, at *3 (D. Nev. Apr. 1,
1
2014); Bertaut v. Parish of Jefferson, No. Civ.A.02-2104, 2002 WL 31528468, at *1
(E.D. La. Nov. 8, 2002) (Vance, J.).
II.
RULE 12(b)
A. Rule 12(b)(1) – Dismissal for Lack of Subject Matter Jurisdiction
1. Subject matter jurisdiction refers to the tribunal’s power to hear a case. Union Pac.
R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent.
Region, 558 U.S. 67 (2009) (quotations and citations omitted).
2. The basic statutory grants of subject matter jurisdiction are contained in 28 U.S.C.
§1331 and §1332. Federal question jurisdiction exists when a plaintiff pleads a
colorable claim “arising under” the Constitution or laws of the United States. Bell v.
Hood, 327 U.S. 678, 681-85 (1946). Diversity jurisdiction is present when a plaintiff
presents a claim between parties of diverse citizenship that exceeds the jurisdictional
amount. Of course, there are many other statutory jurisdictional grants (e.g., 28
U.S.C. §1333 (admiralty and maritime) - 1369 (multiparty, multiforum jurisdiction)).
3. Lack of subject matter presents an issue quite different from whether the allegations
entitle a plaintiff to relief. Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869,
2877 (2010) (district court improperly dismissed under FED. R. CIV. P. 12(b)(1)
foreign investor’s securities claim against Australian Bank based on foreign
transactions because resolving the question of what conduct §10(b) reaches is the
same merits question as asking what conduct §10(b) prohibits, which is a merits
question).
4. Federal question claims can be dismissed for lack of subject matter jurisdiction
(rather than failure to state a claim) only when the claim is not even “colorable,” i.e.,
it is wholly insubstantial and frivolous or is immaterial and made solely for purposes
of obtaining jurisdiction. Bell v. Hood, 327 U.S. at 682-83.
5. The Supreme Court has explained the distinction between the failure to state an
element of a claim for relief versus a jurisdictional requirement. See, e.g., Arbaugh v.
Y&H Corp., 546 U.S. 500, 514-16 (2006) (Title VII’s definition of employer as one
who employs 15 or more persons is an element of the claim, not a jurisdictional
requirement, and, therefore, that the failure to raise defense that employer employed
fewer than 15 people was waived when not raised before judgment, reversing Rule
12(b)(1) dismissal based on motion asserted two weeks post-trial); see also Payne v.
Progressive Financial Services, Inc., 748 F.3d 605, 608 (5th Cir. 2014) (improper to
use Rule 12(b)(1) to decide merits of the case because argument based on unaccepted
offer of judgment rendering claim moot required merits determination of the damages
to which plaintiff was entitled).
6. “In evaluating subject matter jurisdiction on a motion to dismiss a court may consider
‘(1) the complaint alone, (2) the complaint supplemented by undisputed facts
2
evidenced in the record, or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.’” Tewari De-Ox Sys., Inc. v. Mountain
States/Rosen, Ltd. Liab. Corp., 757 F.3d 481, 483 (5th Cir. 2014) (citation and
quotation omitted); see also Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir.
2014) (the court is free to weigh the evidence and resolve factual disputes to satisfy
itself that it has the power to hear the case).
7. The court must address a subject matter motion before other substantive motions to
avoid a court without jurisdiction prematurely dismissing a case with prejudice.
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also McCasland v.
City of Castroville, 478 Fed. Appx. 860, 860-61 (5th Cir. 2012) (vacating Rule
12(b)(6) dismissal because district court failed to first address Rule 12(b)(1) motion).
8. If the court lacks subject matter jurisdiction, it should dismiss without prejudice. In
re Great Lakes Dredge & Dock Co., LLC, 624 F.3d 201, 209 (5th Cir. 2010); see also
Cox, Cox, Filo, Camel & Wilson, LLC v. Sasol N. Am., Inc., 544 Fed. Appx. 455 (5th
Cir. 2013) (vacating Rule 12(b)(1) dismissal with prejudice and remanding for
determination of whether dismissal was for lack of jurisdiction or for failure to state a
claim).
9. Lack of subject matter jurisdiction cannot be waived. A Rule 12(b)(1) motion is not
waived by failure to raise it with other Rule 12(b) defenses, and it can be raised even
after trial, or the Court can raise it sua sponte. FED. R. CIV. P. 12(h); Arbaugh, 546
U.S. at 506-07 (examining defendant’s post trial motion for dismissal for lack of
subject matter jurisdiction).
B. Rule 12(b)(2) - Lack of Personal Jurisdiction
1. “‘Jurisdiction’ refers to ‘a court's adjudicatory authority.’” Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154, 160 (2010) (citing Kontrick v. Ryan, 540 U.S. 443, 455
(2004)). “The term ‘jurisdictional’ properly applies only to ‘prescriptions delineating
the classes of cases (subject-matter jurisdiction) and the persons (personal
jurisdiction)’ implicating that authority.” Id.
2. Personal jurisdiction refers to the court’s adjudicatory authority to exercise its power
over the person subject to suit.
a. Specific jurisdiction refers to the situation when the suit “aris[es] out of or
relate[s] to the defendant's contacts with the forum.” Daimler AG v. Bauman,
134 S.Ct. 746, 754 (2014) (quoting Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414 n. 8 (1984)); see also Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853(2011)(“Adjudicatory
authority is ‘specific’ when the suit ‘aris[es] out of or relate[s] to the
defendant’s contacts with the forum.”).
3
b. General jurisdiction refers to continuous and systematic contacts with a state
that are “so substantial and of such a nature as to justify suit against it on
causes of action arising from dealings entirely distinct from those activities.”
Daimler, 134 S. Ct. at 754 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310, 318 (1945)).
3. “The party invoking the court's jurisdiction bears the burden of establishing that a
defendant has the requisite minimum contacts with the forum state to justify the
court's jurisdiction.” Herman v. Cataphora, Inc., 730 F.3d 460, 464 (5th Cir. 2013)
(citing Guidry v. U.S. Tobacco Co., Inc., 188 F.3d 619, 625 (5th Cir. 1999)). The
plaintiff thus bears the burden of proving personal jurisdiction when a defendant
raises the defense of lack of personal jurisdiction. Luv N' Care, Ltd. v. Insta–Mix,
Inc., 438 F.3d 465, 469 (5th Cir. 2006).
4. The court may determine the jurisdictional issue either with or without conducting an
evidentiary hearing. See Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co.,
517 F.3d 235, 241-42 (5th Cir. 2008). The nonmovant’s burden of proof varies
depending on whether the court conducts an evidentiary hearing or not. Id.
a.
“When the court conducts an evidentiary hearing, it may examine affidavits,
interrogatories, depositions, oral testimony, or any combination of the
recognized methods of discovery.” Doddy v. Oxy USA, Inc., 101 F.3d 448,
460 (5th Cir. 1996) (citing Colwell Realty Invs. v. Triple T. Inns of Arizona,
785 F.2d 1330, 1333 (5th Cir. 1986)).
b. When the court rules without a full-blown evidentiary hearing, the nonmovant
need only make a prima facie showing (not establish jurisdiction by a
preponderance of the evidence). Walk Haydel & Assocs., Inc., 517 F.3d at
241-42 (reversing Rule 12(b)(2) dismissal after court required more than a
prima facie showing of jurisdiction because court’s consideration of written
discovery only, after denial of additional discovery and refusal to allow live
testimony at hearing, was insufficient to constitute a full-blown evidentiary
hearing necessary to require nonmovant to establish jurisdiction by a
preponderance of the evidence).
c. When ruling without an evidentiary hearing, the court must accept as true the
nonmover's allegations and resolve all factual disputes in its favor. Herman v.
Cataphora, Inc., 730 F.3d 460, 464 (5th Cir. 2013); Guidry, 188 F.3d at 625;
see also Stripling v. Jordan Prod. Co., 234 F.3d 863, 869 (5th Cir. 2000)
(explaining that we “accept as true the uncontroverted allegations in the
complaint and resolve in favor of the plaintiff any factual conflicts”).
5. If the Court finds that it lacks personal jurisdiction, it may either:
a. dismiss the action pursuant to FED. R. Civ. P. 12(b)(2); or
4
b. transfer the case to “any district or division in which it could have been brought”
under 28 U.S.C. § 1406(a) if transfer is “in the interest of justice.” Herman, 730
F.3d at 466 (citing Dubin v. United States, 380 F.2d 813, 816 (5th Cir.1967));
Bentz v. Recile, 778 F.2d 1026, 1028 (5th Cir. 1985).
6. Dismissal for lack of personal jurisdiction under Rule 12(b)(2) is a dismissal without
prejudice, not with prejudice, because it is not a judgment on the merits. Guidry, 188
F.3d at 623 n.2. Personal jurisdiction is an essential element of the jurisdiction of a
court, without which the court is powerless to proceed to an adjudication. Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). A court must have both subject
matter and personal jurisdiction before determining the validity of a claim. Moran v.
Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
7. Lack of personal jurisdiction objection may be waived if not properly raised in a Rule
12(b) motion. FED. R. CIV. P. 12(h)(1).
a. Even when a personal jurisdiction objection is raised in a Rule 12(b)(2)
motion, a defendant must preserve that objection in later filings (e.g., Answer,
Pretrial Order) to require that Plaintiff establish personal jurisdiction by a
preponderance of evidence at trial. Beagles & Elliott Enters., LLC v. Florida
Aircraft Exch., Inc., 70 Fed. Appx. 185, 187 (5th Cir. 2003) (omission of personal
jurisdiction issue from pretrial order coupled with stipulation that there are no
pending jurisdictional issues constituted concession of personal jurisdiction).
Some courts consider the failure to renew the personal jurisdiction objection
during or after trial “abandonment” of the defense. See, e.g., Rice v. Nova
Biomedical Corp., 38 F.3d 909, 914-15 (7th Cir. 1994).
b. The waiver argument itself, however, may be waived. Mullins v.
TestAmerica, Inc., 564 F.3d 386, 399-400 (5th Cir. 2009) (failure to mention
personal jurisdiction defense in summary judgment, pretrial order, motion for
judgment as a matter of law did not waive right to demand that personal
jurisdiction be established by a preponderance of evidence at trial when both
parties argued trial evidence on appeal because other party waived the right to
object to the failure to preserve the jurisdictional challenge).
C. Rule 12(b)(3) -- Improper Venue
1. Venue refers to the geographic specification of a proper court or courts for litigation
of a civil action that is within the subject matter jurisdiction of the district courts in
general. 28 U.S.C. §1390.
2. Whether venue is proper or improper is generally governed by 28 U.S.C. §1391. Atl.
Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct. 568, 578
(2013). When venue is challenged, the court must determine whether the case falls
within one of the three categories set forth in 1391(b) or within some other specific
5
venue grant. If the case is filed in an authorized venue, then venue is not wrong for
purposes of Rule 12(b)(3).
3. Circuit courts were split over whether a forum selection clause could be enforced by a
Motion to Dismiss under Rule 12(b)(3). The United States Supreme Court answered
that question in Atlantic Marine Construction Co. v. United States District Court for
the Western District of Texas, 134 S. Ct. 568, 579-80 (2013), by holding that a forum
selection clause is enforced by a Motion to Transfer under 28 U.S.C. §1404(a) or a
Motion to Dismiss for Forum Non Conveniens if the contract specifies only a state
court forum, but not by a Rule 12(b)(3) motion because the existence of a forum
selection clause does not impact whether venue is proper under §1391.
4. A court may decide to dismiss a case for forum non conveniens even before it
resolves the issue of whether it has subject matter or personal jurisdiction where
subject-matter or personal jurisdiction is difficult to determine, and forum non
conveniens considerations weigh heavily in favor of dismissal. Sinochem Int’l Co.
Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 435-36(2007).
5. In resolving a Rule 12(b)(3) motion, the court may consider “evidence in the record
beyond simply those facts alleged in the complaint and its proper attachments.”
Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 449 (5th Cir.
2008) (citing Lane ex rel. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008)
(“[T]he court may find a plausible set of facts by considering any of the following:
(1) the complaint alone; (2) the complaint supplemented by the undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.” (internal quotation marks omitted)).
6. In the absence of factual findings made by the court based upon an evidentiary
hearing, affidavits and other evidence submitted by the non-moving party in the
context of a Rule 12(b)(3) challenge are to be viewed in the light most favorable to
that party. Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009) (citing
Murphy v. Schneider Nat'l Inc., 362 F.3d 1133, 1138–40 (9th Cir. 2004)); see also
Noble Drilling Services, Inc. v. Certex USA, Inc., 620 F.3d 469, 473 (5th Cir. 2010)
(in reviewing cases decided under Rule 12(b)(3), a court must “view all the facts in a
light most favorable to the plaintiff”) (citations omitted)).
7. Failure to raise a Rule 12(b)(3) defense with a Rule 12 motion or the Answer will
waive that defense. FED. R. CIV. P. 12(h)(1). But a motion to transfer venue under 28
U.S.C. §1404(a) may still be available. CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3829 (2012) (“Unlike a motion to dismiss for improper
venue under Rule 12(b)(3), a motion to transfer venue under Section 1404(a) is not a
‘defense’ that must be raised by pre-answer motion or in a responsive pleading.”).
D. Rule 12(b)(4) - Insufficient Process
1. FED. R. CIV. P. 4 governs the summons.
6
a. Rule 4(a) specifies the requirements for the summons:
- Name of court and the parties;
- Directed to the defendant (or separate ones to each defendant if multiple);
- Name and address of plaintiff’s counsel or the unrepresented plaintiff;
- State the time within which the defendant must appear and defend;
· Normally 21 days under FED. R. CIV. P. 12(a)
· BUT if serving pursuant to the Louisiana long-arm statute, LA. REV.
STAT. §13:3205 provides that no default may be entered until 30
days after filing the certified mailing receipt with the court.
- State that the failure to appear and defend will result in a default judgment
against the defendant for the relief demanded in the complaint;
- Be signed by the clerk; and
- Bear the court’s seal.
b. Rule 4(b) provides that the Clerk must sign, seal and issue a properly prepared
summons.
c. Rule 4(c) mandates that a summons be served on the defendant with a copy of the
complaint.
2. A motion to dismiss under Rule 12(b)(4) requires the defendant to establish
insufficient process under Rule 4 of the Federal Rules of Civil Procedure. Hoffman v.
Bailey, 996 F. Supp. 2d 477, 481 (E.D. La. 2014). This objection concerns the form
of the process rather than the manner or method of its service. Gartin v. Par Pharm.
Cos., Inc., 289 Fed. Appx. 688, 691 n.3. (5th Cir. 2008) (citing 5B C. WRIGHT & A.
MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d § 1353).
3. Where the alleged defect is that the defendant is misnamed in the summons, the form
of process could be challenged under Rule 12(b)(4) on the theory that the summons
does not properly contain the names of the parties. Alternatively, it could be
challenged under Rule 12(b)(5) on the ground that the wrong party -- a party not
named in the summons -- has been served. Gartin, 289 Fed. Appx. at 691 n.3 (citing
5B C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d § 1353).
4. “A Motion to Dismiss for insufficient process under Rule 12(b)(4) should be granted
‘only when the defect is prejudicial to the defendant. Otherwise the court should
generally allow an amendment of the process to correct the defect.’” Williams v.
Waffle House, No. 10-00357-JJB-DLD, 2010 WL 3418257, at *1 (M.D. La. Aug. 26,
2010) (quoting 5A C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1353 (2d ed. 2002)).
E. Rule 12(b)(5) - Insufficient Service of Process
7
1. FED. R. CIV. P. 4(c) specifies that the Plaintiff must have the Summons served with a
copy of the Complaint within the time allowed by Fed. R. Civ. P. 4(m) (generally 120
days from the filing of the complaint).
a. Any person over 18 years old may serve the summons and complaint, but that
person cannot be a party to the proceeding. Thus, Plaintiff cannot serve the
summons himself.
b. The Court may appoint the Marshall or other person to effect service. The court
must so order if the plaintiff is authorized to proceed in forma pauperis.
c. FED. R. CIV. P. 4(e) – 4(k) sets forth the accepted methods for service of
individuals and various entities.
d. Proof of service must be filed with the court. FED. R. CIV. P. 4(l).
2. “In the absence of valid service of process, proceedings against a party are void.”
Thomas v. New Leaders for New Sch., 278 F.R.D. 347, 350 (E.D. La. 2011) (quoting
Aetna Bus. Credit, Inc. v. Universal Decor & Interior Design, 635 F.2d 434, 435 (5th
Cir. 1981)).
3. Rule 12(b)(5) provides for dismissal of a claim if service of process was not timely
made in accordance with Federal Rule of Civil Procedure 4 or was not properly
served in the appropriate manner. Thomas, 278 F.R.D. at 349-50 (citing Wallace v.
St. Charles Parish Sch. Bd., No. Civ.A.04-1376, 2005 WL 1155770, at *1 (E.D. La.
May 5, 2005)). A Rule 12(b)(5) motion to dismiss “turns on the legal sufficiency of
the service of process.” Quinn v. Miller, 470 Fed. Appx. 321, 323 (5th Cir. 2012);
Holly v. Metro. Transit Auth., 213 Fed. Appx. 343, 344 (5th Cir. 2007). It challenges
“the mode of delivery or the lack of delivery of the summons and complaint.”
Gartin, 289 Fed. Appx. at 691 n.3 (citing 5B C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 3d § 1353); see also Hayward v. Douglas, No. 0772-FJP-DLD, 2010 WL 128320, at * (M.D. La. Jan. 12, 2010).
4. Where the alleged defect is that the defendant is misnamed in the summons, the
service could be challenged under Rule 12(b)(5) on the ground that the wrong party -a party not named in the summons -- has been served. Alternatively, it could be
challenged under Rule 12(b)(4) because the summons does not properly contain the
names of the parties. Gartin, 289 Fed. Appx. at 691 n.3 (citing 5B C. WRIGHT & A.
MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 3d § 1353).
5. “The party making service has the burden of demonstrating its validity when a Rule
12(b)(5) objection to service is made.” Quinn, 470 Fed. Appx. at 323 (citing Carimi
v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)); see also
Hayward, 2010 WL 128320, at *1 (citing Sys. Signs Supplies v. U.S. Dept. of Justice,
903 F.2d 1011 (5th Cir. 1990)).
8
6. When considering a motion to dismiss pursuant to Rule 12(b)(5), the district court
must accept all well-pleaded facts as true and view them in the light most favorable to
the plaintiff. Lisson v. ING GROEP N.V., 262 Fed. Appx. 567, 570 n.2 (5th Cir. 2007)
(citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); McClinton v. Delta Pride
Catfish, Inc., 982 F. Supp. 417, 418 (N.D. Miss.1997)).
7. “The general rule is that [a] signed return of service constitutes prima facie evidence
of valid service, which can be overcome only by strong and convincing evidence.”
Thomas, 278 F.R.D. at 351 (quoting People's United Equip. Fin. Corp. v. Hartmann,
447 Fed. Appx. 522, 524 (5th Cir. 2011)) (internal quotations and citations omitted).
The Court may, however, consider affidavits when resolving a Rule 12(b)(5)
challenge without converting the motion into a motion for summary judgment. Id.
(citing Blair v. City of Worcester, 522 F.3d 105, 112 (1st Cir. 2008); Williams, 2010
WL 3418257, at *1; Hahn v. Bauer, No. 09-2220, 2010 WL 396228, at *5 (D. Minn.
Jan. 27, 2010)(Ericksen, J.)).
8. If Plaintiff does not serve a defendant “within 120 days after the complaint is filed,
the court ... must dismiss the action without prejudice against that defendant or order
that service be made within a specified time.” FED. R. CIV. P. 4(m).
9. “[A] movant can request either that an action be dismissed, or that service be
quashed.” Servicio Marina Superior, L.L.C. v. OPI Int’l Contractors, Ltd., No. 122847, 2013 WL 1736250, at *2 (E.D. La. Apr. 22, 2013) (citing Gartin, 289 Fed.
Appx at 691–92 (5th Cir. 2008)). The district courts “possess a broad discretion to
dismiss cases or to simply quash service.” Lisson, 262 Fed. Appx. at 571 (citing
Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 645 (5th Cir. 1994)).
“Where there is a reasonable prospect that plaintiff ultimately will be able to serve
defendant properly, the proper course of action is to quash service and permit a
plaintiff another opportunity to complete service rather than dismiss the case.”
Thomas, 278 F.R.D. at 352(internal quotation marks and citation omitted); see also
Williams, 2010 WL 3418257, at *1 (“‘[s]ervice generally will be quashed and the
action preserved,’ where there is ‘a reasonable prospect that plaintiff ultimately will
be able to serve defendant properly’”) (citing 5A C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1354 (2d ed. 2002)).
10. “[P]ro se litigants are allowed more latitude than litigants represented by counsel to
correct defects in service of process and pleadings.” Lisson, 262 Fed. Appx. at 571
(citations omitted).
F. Rule 12(b)(6) - Failure to State a Claim Upon Which Relief Can Be Granted
1.
Standard for Rule 12(b)(6).
a. Historically, Rule 12(b)(6) motions were disfavored. To prevail, a defendant had
to establish “beyond any doubt that the plaintiff can prove no set of facts in
9
support of his claim which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957).
b. This changed with two Supreme Court decisions, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). No longer must
a defendant prove “beyond any doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Now, a plaintiff’s
complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570)(emphasis added); accord Little v. KPMG LLP, 575
F.3d 533, 541 (5th Cir. 2009).
c. A Rule 12(b)(6) motion in any civil case is analyzed under the standard
announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Iqbal, 556
U.S. at 678-79. To survive a Rule 12(b)(6) motion, the plaintiff must state a
claim that is “plausible on its face.”
2. Plausibility.
a. A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556); Gonzales
v. Kay, 577 F.3d 600, 603 (5th Cir. 2009); Fields v. Dep’t of Pub. Safety, 911 F.
Supp. 2d 373, 383 (M.D. La. 2012) (Jackson, J.).
b. The complaint must contain “allegations plausibly suggesting (not merely
consistent with)” an entitlement to relief. Twombly, 550 U.S. at 557. The
complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). The facts in the Complaint must “raise a right to
relief above the speculative level,” and into the “realm of plausible liability.” See
Twombly, 550 U.S. at 555. In other words, the complaint must allege enough
facts to move past possibility and on to plausibility of “entitlement to relief.” Id.
at 558.
Determining whether a complaint states a plausible claim
for relief [is]…a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not
“show[n]”—“that the pleader is entitled to relief.”
Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)) (internal citation omitted);
see also Gonzales, 577 F.3d at 603 (same).
10
3. How detailed must the factual allegations be to survive a Rule 12(b)(6)?
a. The plaintiff must plead factual content that allows the court to draw reasonable
inferences that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S.
at 678; see also Gonzalez, 557 F.3d at 603.
b. A complaint cannot simply “le[ave] open the possibility that a plaintiff might later
establish some ‘set of [undisclosed] facts’ to support recovery.” Twombly, 550
U.S. at 561 (citation omitted).
c. Courts will not assume that a plaintiff can prove facts beyond those alleged in the
complaint. See Assoc. Gen. Contractors of Cal. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
d. Plaintiff’s obligation to “provide the grounds of his entitle[ment] to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations
omitted)(citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932 (1986)).
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
e. A complaint attacked by a Rule 12(b)(6) motion to not need, however, set forth
detailed factual allegations (unless otherwise required such as in instances of
fraud under FED. R. CIV. P. 9 or the Private Securities Litigation Reform Act
(PSLRA)). Compare Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)
(complaint need not contain specific factual allegations to state a prima facie case
of discrimination and Rule 9(b) does not explicitly require greater pleading
requirements set forth in Rule 8(a) for discrimination cases ), with Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (discussing heightened
pleading requirements required by PSLRA to survive Rule 12(b)(6) motion).
4. Evidence
a. Fed. R. Civ. P. 12(d) specifies that, if matters outside of the pleadings are
presented and not excluded by the court on a Rule 12(b)(6) or Rule 12(c) motion,
the motion must be treated as a motion for summary judgment. However, not all
evidence falls within this provision. Tellabs, Inc., 551 U.S. at 322 (directing
courts to “consider the complaint in its entirety, as well as other sources courts
ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,
documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice” (citing 5B C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE, § 1357 (3d ed. 2004 & Supp. 2007)).
b. Without converting a 12(b)(6) into a Rule 56 motion, the Court may consider:
11
-
Documents attached to the complaint. Court may consider documents
incorporated by reference into the complaint. See Wolcott v. Sebelius, 635
F.3d 757, 763 (5th Cir. 2011); Dorsey v. Portfolio Equities, Inc., 540 F.3d
333, 338 (5th Cir. 2008).
-
Documents attached to the motion to dismiss that are central to the claim and
referenced by the complaint. Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000); see also In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007) (consideration of insurance contracts unattached
to the complaint permissible where they were attached to the motions to
dismiss, referred to in the complaint, and central to the plaintiffs’ claims).
-
Documents that are part of the public record (such as evidence in a prior
proceeding). Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995) (“Federal
courts are permitted to refer to matters of public record when deciding a
12(b)(6) motion to dismiss.” (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6
(5th Cir. 1994)).
-
Matters subject to judicial notice. Bauer v. Texas, 341 F.3d 352, 362 n.8 (5th
Cir. 2003) (judicial notice of public court records not in dispute); Kinnett
Dairies, Inc. v. Farrow, 580 F.2d 1260, 1277 n.33 (5th Cir. 1978) (permitting
judicial notice of a court’s own records or those of the inferior courts).
5. Court Must Accepted Well-Pleaded Factual Allegations as True
a. In ruling on a Rule 12(b)(6) motion, when there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679 (pleadings
that are “no more than conclusions . . . are not entitled to the assumption of
truth”).
b. Although facts properly alleged must be construed in favor of the plaintiff, a court
need “not accept as true conclusory allegations, unwarranted factual inferences, or
legal conclusion.” Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010); see also
Iqbal, 556 U.S. at 678 (court is not required to accept mere legal conclusions as
true). Thus, “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes
v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993); see also Jebaco, Inc. v.
Harrah’s Operating Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009) (allegations
amounting to mere labels and conclusions or containing a formulaic recitation of
the elements of the cause of action will not suffice).
c. Courts are not required to accept as true allegations contradicted by documents
attached to in the complaint. Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812
(5th Cir. 1940).
12
G. Rule 12(b)(7) - Failure to Join a Party under Rule 19
1. Federal Rule of Civil Procedure 19 allows both for the joinder of parties who
should be present in order to have a “fair and complete resolution of the dispute,”
and for the dismissal of lawsuits “that should not proceed in the absence of parties
that cannot be joined.” Dore Energy Corp. v. Prospective Inv. & Trading Co. Ltd.,
570 F.3d 219, 230-31 (5th Cir. 2009)(citation omitted); In re Apple iPhone 3G &
3GS MMS Mktg. & Sales Practices Litig., 864 F. Supp. 2d 451, 455-56 (E.D. La.
2012) (“Rule 12(b)(7) allows dismissal for ‘failure to join a party under Rule 19.’
Rule 19 provides for the joinder of all parties whose presence in a lawsuit is
required for the fair and complete resolution of the dispute at issue. It further
provides for the dismissal of litigation that should not proceed in the absence of
parties that cannot be joined.” (citing HS Res., Inc. v. Wingate, 327 F.3d 432, 438
(5th Cir. 2003) (footnotes omitted))); see also In re Chinese Manufactured
Drywall Prods. Liab. Litig., 273 F.R.D. 380, 384 (E.D. La. 2011) (“Federal Rule
of Civil Procedure 12(b)(7) authorizes a motion to dismiss for failure to join a
required party in accordance with Rule 19.”). “A prerequisite to a proper
dismissal for failure to join an indispensable party is that the absent party, if
added, would divest the court of subject-matter jurisdiction.” August v. Boyd
Gaming Corp., 135 Fed. Appx. 731, 732 (5th Cir. 2005).
2. Rule 12(b)(7) analysis entails two inquiries under Rule 19. Under Rule 19(a), the
court is to determine whether an absent person “who is subject to service of
process and whose joinder will not deprive the court of subject-matter
jurisdiction” should be joined as a “required party.” FED. R. CIV. P. 19(a). If the
court finds in the affirmative, that person must be joined, unless joinder is not
feasible, then the court must determine under Rule 19(b) whether to proceed
without the absent person or to dismiss the action. In re Chinese Manufactured
Drywall Prods. Liab. Litig., 273 F.R.D. at 385 (citing August, 135 Fed. Appx. at
732; HS Res., Inc., 327 F.3d at 438–39; 5C C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1359 (3d ed. 2010)).
3. “A party seeking dismissal under Rule 12(b)(7) bears the burden of showing ‘the
nature of the interest possessed by an absent party and that the protection of that
interest will be impaired by the absence.’” Martin v. Tesoro Corp., No. 2:11 CV
1413, 2012 WL 135676, at*3 (W.D. La. Jan. 17, 2012) (citing Citizen Band
Potawatomi Indian Tribe of Okla. v. Collier, 17 F.3d 1292, 1293 (10th Cir.1994));
see also HS Res., Inc., 327 F.3d at 439 n.11 (“The burden is on the moving party
to show the nature of the unprotected interests of the absent parties.”(quoting 5A
C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE § 1359, at 426)).
4. “The movant bears the initial burden of demonstrating that an absent person or
entity is a required party, but if an initial appraisal of the facts demonstrates the
absent person or entity is required, the burden is shifted to the opponent of
joinder.” In re Chinese Manufactured Drywall Prods. Liab. Litig., 273 F.R.D. at
385 (citing Hood v. City of Memphis, 570 F.3d 625, 628 (5th Cir. 2009) (quoting
13
Pulitzer–Polster v. Pulitzer, 784 F.2d 1305, 1309 (5th Cir. 1986)); Ranger Ins.
Co. v. United Hous. of New Mexico, Inc., 488 F.2d 682, 683 (5th Cir. 1974)); see
also Daste v. Elegalsupply.com, No. 12-1446, 2012 WL 5866072, at *5 (E.D. La.
2012).
III.
Rule 12(c)
A. After pleadings are closed (i.e., deadline for amendment of pleadings has run and answers
are filed), but within such time as not to delay trial, a party may move for judgment on
the pleadings under Rule 12(c). Great Plains Trust Co. v. Morgan Stanley Dean Witter
& Co., 313 F.3d 305, 312 (5th Cir. 2002).
1. Although the language of Rule 12(c) suggests that this motion can be brought up
to the time of trial, the Court’s Rule 16 scheduling order will supersede that right.
Argo v. Woods, 399 Fed. Appx 1, 2-3 (5th Cir. 2010). A Rule 12(c) motion can
only be brought up through trial if leave is granted to file same after the motion
deadline set forth in the Rule 16 Scheduling Order. See id.
B. “A motion under Rule 12(c) for failure to state a claim is subject to the same standards as
a Rule 12(b)(6) dismissal.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201,
209–10 (5th Cir. 2010) (citing Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008);
Great Plains Trust Co., 313 F.3d at 313 n.8). “To avoid dismissal, ‘a complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.”’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d at 210
(citing Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)). “To be plausible, the
complaint's ‘[f]actual allegations must be enough to raise a right to relief above the
speculative level.’” Id. (quoting Twombly, 550 U.S. at 555).
C. In deciding whether the complaint states a valid claim for relief, all well-pleaded facts
must be accepted as true and the complaint construed in the light most favorable to the
plaintiff. See MySpace, 528 F.3d at 418. The Court does not, however, accept as true
“conclusory allegations, unwarranted factual inferences, or legal conclusions.” Ferrer v.
Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407
F.3d 690, 696 (5th Cir. 2005)).
D. The Court may consider documents that are “part of the pleadings” (i.e., documents
attached to or incorporated in the complaint that are central to plaintiff's claim for relief),
see Causey v. Sewell Cadillac–Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)
(citation omitted), as well as matters of public record or subject to judicial notice, see
United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 379 (5th
Cir. 2003); see also Great Plains Trust Co., 313 F.3d at 313 (discussing various
characterizations of what documents may be considered on a Rule 12(c) motion).
14
IV.
Rule 12(d) – Result of Presenting Matters Outside of the Pleadings
A. See discussion in Sections II(F)(4) and III(D) for cases recognizing that certain materials
are not considered to be outside of the pleadings for purposes of Rule 12(b)(6) and 12(c).
B. Unless the matter presented falls within the exceptions previously discussed, submission
of the documents (unless excluded by the court) converts the Rule 12(b)(6) or Rule 12(c)
motion into a Rule 56 motion.
1. A converted motion requires that all parties be given a reasonable opportunity to
present all material that is pertinent to the motion.
2. Formal notice of the decision to convert the motion to dismiss into a summary
judgment, however, is not required. “Notice in this context is satisfied if the
nonmovant knows that the court may convert the motion.” Guiles v. Tarrant
County Bail Bond Bd., 456 Fed. Appx. 485, 487 (5th Cir. 2012) (citing Isquith v.
Middle S. Utils., Inc., 847 F.2d 186, 195 (5th Cir.1988)).
3. “The court need not expressly warn the nonmovant that it plans to convert the
motion.” Id. (citation omitted). Rather, the nonmovant “receives adequate notice
when it is aware that the movant has placed matters outside the pleadings before
the district court for its review.” Id. (citation omitted).
V.
Rule 12(e) – Motion for More Definite Statement
Rule 12(e) entitles a party to a more definite statement when a portion of a pleading to
which a responsive pleading is allowed “is so vague or ambiguous that the party cannot
reasonably prepare a response.” FED. R. CIV. P. 12(e). “If a pleading fails to specify the
allegations in a manner that provides sufficient notice,” then a Rule 12(e) motion may be
appropriate. Swierkiewicz, 534 U.S. at 514.
A. Rule 8 v. Rule 12(e).
1. Motions for more definite statements are generally disfavored because of the
liberal pleading standards of Rule 8, which simply call for a short and plain
statement of the claim to give the defendant fair notice of the claim and the
grounds upon which it rests. Alford v. Chevron U.S.A. Inc., 13 F. Supp. 3d 581,
590-91 (E.D. La. 2014) (citing Mitchell v. E–Z Way Towers, Inc., 269 F.2d 126,
132 (5th Cir. 1959); Who Dat Yat Chat, LLC v. Who Dat, Inc., Nos. 10-1333, 102296, 2012 WL 2087438, at *6 (E.D. La. June 8, 2012); EEOC v. Alia Corp., 842
F. Supp. 2d 1243, 1250 (E.D. Cal. 2012); 5C CHARLES ALLEN WRIGHT, ET AL.,
FEDERAL PRACTICE AND PROCEDURE § 1377 (3d ed. 2010) (“[A]s a result of the
generally disfavored status of these motions, the proportion of Rule 12(e) requests
granted by the district courts appears to have remained quite low.”)); see also
Gen. Star Indem. Co. v. Vesta Fire Ins. Co., 173 F.3d 946, 951 (5th Cir. 1999)
(“Pursuant to Rule 8(a), a complaint will be deemed inadequate only if it fails to
(1) provide notice of the circumstances which give rise to the claim, or (2) set
15
forth sufficient information to outline the elements of the claim or permit
inferences to be drawn that these elements exist.”).
2. Rule 12(e) provides a remedy for unintelligible pleadings, and thus is only
successfully invoked where (1) a responding party cannot reasonably respond to a
pleading or (2) the pleading does not provide sufficient notice.” Dubuque Barge
& Fleeting Serv., Inc. v. Plaquemines Parish Gov’t, No. 10-0516, 2010 WL
1710372, at *2 (E.D. La. Apr. 23, 2010) (citations omitted). The standard for
evaluation of a Rule 12(e) motion is “whether the complaint is so excessively
vague and ambiguous as to be unintelligible and as to prejudice the defendant
seriously in attempting to answer.” Coleman v. H.C. Price Co., No. 11-2937,
2012 WL 1118775, at *6 (E.D. La. Apr. 3, 2012) (citations and quotation
omitted).
3. Rule 12(e) should not be used to frustrate the notice pleading policy by “lightly
requiring a plaintiff to amend his complaint which under Rule 8 is sufficient to
withstand a motion to dismiss.” Mitchell, 269 F.2d at 132.
4. A motion for more definite statement will not be granted when a moving party
can reasonably respond to the complaint, but merely wants the plaintiff to plead
additional information that could and should be gained through discovery. See
Newcourt Leasing Corp. v. Reg’l Bio-Clinical Lab., Inc., No. CIV.A.99-2626,
2000 WL 134700, at *1 (E.D. La. Feb. 1, 2000); Brown v. Maxxam, Inc., No. 901468, 1991 WL 13918, at *2 (E.D. La. 1991). Rule 12(e) motions are “not to be
used to assist in getting the facts in preparation for trial,” because “[o]ther rules
relating to discovery, interrogatories and the like exist for this purpose.” Mitchell,
269 F.2d at 132; see also Coleman, 2012 WL 1118775, at *6 (“The availability of
extensive discovery is another factor in the disfavored status of the motion for
more definite statement. . . . When a defendant needs additional information to
prepare for trial, discovery is the proper procedure instead of a Rule 12(e)
motion.”(citations omitted)).
5. When fundamental facts are omitted from a claim, a Rule 12(e) motion is proper.
Coleman, 2012 WL 1118775, at *7.
B. Rule 9(b)’s Heightened Pleading Requirements.
1. “A party may rely on Rule 12(e) to challenge the sufficiency of a pleading under
Rule 9(b).” Lindsey v. Dyncorp Int'l LLC, No. H-09-0700, 2009 WL 1704253, at
*1 (S.D. Tex. June 17, 2009) (citing 5C C. WRIGHT & A. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1376, at 330–31 (“Even though Rule 9 itself
contains no mechanism for enforcing its terms, numerous cases make it clear that
the common practice has been to use a motion under Rule 12(e) for that
purpose.”)); see Bishop v. Shell Oil Co., No. 07-2832, 2008 WL 57833, at *1–2
(E.D. La. Jan. 3, 2008) (granting Rule 12(e) motion based on failure to comply
with Rule 9(b)); see also Old Time Enters., Inc. v. Int’l Coffee Corp., 862 F.2d
16
1213, 1217 (5th Cir. 1989) (affirming order requiring a more definite statement
under Rule 12(e) when plaintiff's fraud claims failed to comply with Rule 9(b)).
2. A party who invokes Rule 12(e) based on non-compliance with Rule 9(b) requests
that the plaintiff replead, but does not seek dismissal of the fraud claim. “When a
party seeks dismissal, rather than a more definite statement, for failure to plead
fraud with particularity, a Rule 12(b)(6) motion is a proper procedural
mechanism.” Cole v. JEBF Holdings, LLC, No. 14-0298, 2014 WL 5822795, at
*7 (E.D. La. Nov. 10, 2014) (citations omitted).
C. Time for Filing
Under Rule 12(e), a motion for a more definite statement “must be made before filing a
responsive pleading and must point out the defects complained of and the details
desired.” FED. R. CIV. P. 12(e).
D. Response Due
If the court orders a more definite statement and the non-moving party fails to comply
within fourteen (14) days after the order, or another court-determined time, then the court
may strike the pleading or issue an appropriate order. Id.
VI.
Rule 12(f) – Motion to Strike
A. Federal Rule of Civil Procedure 12(f) allows the court to strike “from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
FED. R. CIV. P. 12(f).
B. Rule 12(f) addresses pleadings, not motions and other papers. Centex Homes v.
Lexington Ins. Co., No. 3:13-cv-719-BN, 2014 WL 1225501, at*12 (N.D. Tex. Mar. 25,
2014) (citations omitted) (stating that Rule 12(f) applies only to pleadings as defined in
Federal Rule of Civil Procedure 7(a)).
C. A motion to strike should be granted only when “the allegations are prejudicial to the
defendant or immaterial to the lawsuit.” Schlosser v. Metro. Prop. & Cas. Ins. Co., No.
12-1301, 2012 WL 3879529, at *1 (E.D. La. Sept. 6, 2012) (citation omitted).
Immateriality is established by showing that the challenged allegations “can have no
possible bearing upon the subject matter of the litigation.” Id. (citation omitted).
D. A Rule 12(f) motion to dismiss is properly used to strike an affirmative defense that is
insufficient as a matter of law. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982) (citations omitted); see also David
v. Signal Int’l, LLC, Nos. 08-1220, 12-557, 2013 WL 2181293, at *1-2 (E.D. La. May 20,
2013). It should not, however, be used to seek dismissal of all or part of a claim that
should be addressed via Rule 12(b)(6). C. WRIGHT & A. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1380.
17
E. A motion to strike under Rule 12(f) “is a drastic remedy to be resorted to only when
required for the purposes of justice.” Schlosser, 2012 WL 3879529, at *1 (citing
Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir.
1962); see also Kaiser Aluminum & Chem. Sales, Inc., 677 F.2d at 1057 (“[M]otions to
strike a defense are generally disfavored.”); Synergy Mgmt., LLC v. Lego Juris A/S, 2008
WL 4758634, at *1 (E.D. La. Oct. 24, 2008) (“[M]otions to strike made under Rule 12(f)
are viewed with disfavor by the federal courts, and are infrequently granted.”)).
F. “Disputed questions of fact cannot be decided on a motion to strike.” Schlosser, 2012 WL
3879529, at *1 (citing Gonzales v. State Farm Mut. Auto. Ins., No. 10-3041, 2011 WL
2607096, at *5 (E.D. La. July 1, 2011).
VII.
Rules 12(g) and 12(h) – Timing of Motions, Joining Motions, Waiver, and
Preservation of Defenses
A. What Rule 12 Motions Must Be Made Before the Responsive Pleading/Answer?
1. Rule 12(b) - A motion asserting any of the Rule 12(b) defenses must be made before
pleading if a responsive pleading is allowed. Rule 12(b) (last paragraph).
a. Rule 12(h)(1) makes clear, however, that only the defenses listed in Rules
12(b)(2)-(5) are waived if (i) omitted from the initial Rule 12(b) motion or (ii)
either not raised in a Rule 12 motion or not included in the responsive
pleading or an authorized amendment under FED. R. CIV. P. 15(a)(1).
b. A Rule 12(b) motion filed after the Answer is untimely. Jones v. Greninger,
188 F.3d 322, 324 (5th Cir. 1999). An untimely Rule 12(b) motion may,
however, be treated as Rule 12(c) motion, which is filed after pleadings are
closed. Id.
2. Rule 12(e) Motion must be made before the responsive pleading.
3.
Rule 12(f) Motion to Strike must be made before responding to the pleading (or
within 21 days if no response is allowed).
B. What Rule 12 Motions Are Made After the Responsive Pleading/Answer?
1. Rule 12(c) motions are made after the pleadings are closed.
C. A party who makes a Rule 12 motion cannot make another Rule 12 motion raising a
defense or objection that was available but omitted from the earlier motion, except as
allowed by Rule 12(h)(2) and 12(h)(3). FED. R. CIV. P. 12(g)(2).
a. Rule 12(h)(2) specifies that motions for failure to state a claim (Rule 12(b)(6)),
failure to join an indispensable party under Rule 19(b) (Rule 12(b)(7)), or failure
18
to state a legal defense to a claim may also be raised in any pleading allowed by
Rule 7 (i.e., an Answer), by motion under Rule 12(c), or at trial.
-
Only the defense of failure to join a party required by Rule 19(b) is
preserved, not the defense of failure to join a party under Rule 19(a).
b. Rule 12(h)(3) makes clear that a Rule 12(b)(1) defense is never waived, and the
court must dismiss the action if it determines at any time that it lacks subject
matter jurisdiction. Arbaugh, 546 U.S. at 506-07 (discussing defendant’s post
trial motion to dismiss for lack of subject matter).
D. No defense or objection is waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion. FED. R. CIV. P. 12(b) (last line),
12(g)(1).
VIII. Rule 12(i) – Hearing Before Trial
A. If a party so moves, a Rule 12(c) motion and a Rule 12(b)(1)-(7) defense, whether raised
by motion or in a responsive pleading, must be heard and decided before trial, unless the
court orders a deferral until trial. FED. R. CIV. P. 12(i).
19