Motion to dismiss re 12(b)(6).. Let's discuss

What does it take for this motion to win?

I just filed a lawsuit, and expected this, but that's all the motion said.

Motion to dismiss for failure to state a claim upon which releif can be granted.

Anyone experienced at defending against this motion?

HB

[weishaupt1776]

I've never defended against this motion, but I do know that they have canned procedures in that any case brought against the state, they have stock 12b6 motions templates which they pump out without even reading them.

I do know that going ex parte prevents the adversary from dismissing the case because they haven't been joined.

Another technique is to file a complaint & then attempt to dismiss your own case, but I am not too up on that one. Definitely legal kung fu.

All in all the complaint does have to state what type of relief is sought(declaratory, money), what type of damages you incurred, & what duty they breached(common law, statutory, or contractual).

[weishaupt1776]

Oh yeah? You've got us curious here again at the SJ. I'm all eyes, bro.

[Livefire]

Doesnt a motion under 12 (b) 6 have to be suppoted by an affidavit or testimony under rule 56 of the FCRP???

[squirrel]

I talked to a liar about that yesterday, and he said an affidavjt has to be filed with a motion, and that in state matters the federal rules dont apply, and get this one he asked me what a affidavit was. I said you're a liar you should know, that was the end of that discussion.

Wargames, I'm all eyes too....

[weishaupt1776]

Originally Posted by wargames102

-- A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may be proved to be and inartistically as complaint may be drawn. This is particularly true where the Plaintiff is not represented by counsel. Brooks v. Pennslyvania Railroad Co., 91 F.Supp. 101 (SDNY 1950).

This case speaks volumes on how to' state a claim inwhich can be granted.

Thanks, Brother WG.
P.S.
I regret instructing you on how to delete posts
But it keeps us on our toes I guess. It's kinda fun.
We should start taking bets to see how long they'll stay up.

[rushpat]

Dismissal and Nonsuit - Failure To State Claim - Determination of Motion. Upon a motion to dismiss a complaint under CR 12(b)(6) for failure to state a claim upon which relief can be granted, the allegations of the complaint are presumed true and the complaint should be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle him to relief.

First, Thanks Wargames.

That will help. Any other goodies you have, I could use them in crafting my response.

Rushpat,

Is that a cite from a case? If so, what case?

Thanks so much,

HB

Now, does anyone have a copy of this case?

I can't find it online.

HB

[weishaupt1776]

This outline is from a basic law class
http://64.233.161.104/search?q=cache...=en&ie=UTF -8

Here's what you need out of it, though:

• All 12(b) motions must be consolidated into first response filing (pre-answer motion, answer, or amendment thereto) except (1), (6) and (7).
• 12(b)(1), 12(b)(6) & 12(b)(7) are core issues and can be raised at any time, b/f D answers, in answer, after all pldgs are in as a request for judgment on the pldgs, or at trial ñ 12(h)(2) & (3)
• If 12(b) motions are NOT made in first response filing, rules 12(g) and 12(h) provide that 12(b)(2) - 12(b)(5) are then waived.
• Rule 12(b)(6) in particular is not waived to get beyond old rigidities of common law system ñ If D really has committed no legal wrong, she should not be held to waive this basic defense by the mere failure to raise it at the beginning of the suit.* Also, may not be easy to determine whether a complaint fails to state a claim at the outset.
  
  Purpose
  
• Provides speed and finality of each stage ñ prevents bad tactics & wasted judicial resources.
• Also clears out invalid claims right away ñ efficient to avoid cost & expense of commencing discovery for invalid claim
• Justice ñ Fairness to D not to have to defend v. invalid claim.
• NOTE:* When court gets motion to dismiss, it has no time frame within which it must respond.
  
  
  8) Effects of Rule 12(b) pre-answer motions:
  
  
  a) if denied, D has 10 days to answer
  
  
  b) if granted, case is usually dismissed, or wait for p to comply w/ Ct.’s order.*
  
  * This can be a strong tactical advantage for D – not have to admit damaging allegations or undertake discovery.
  
  
  c) usually, 12(b)(6), p granted leave to amend complaint before entire case is dismissed* if P just failed to plead an element that exists.
  
  d) BUT, if there is no way to cure the complaintÃ*s defect b/c the facts do not support a necessary element of the claim OR the law just doesnÃ*t recognize this kind of claim, p’s complaint is dismissed w/ prejudice
  
  9) Types of motions:
  
  
  1)* 12(b)(6) - failure to state a claim upon which relief can be granted (applies as a 12(b)(6) only when made in a pre-answer motion, otherwise = just motion for failure to state a claim)
  
  * Challenges the merits/legal sufficiency of a complaint.* ìAssuming the facts alleged are true, is the complaint sufficient as a matter of law?î
  * Should be granted when:
  
  * P states claim that doesnÃ*t exist under current law
  * P has failed to allege all elements of a cognizable legal claim
  
  * Court only considers the complaint in evaluating this motion
  
  * If matters outside the complaint are brought in, motion is treated as one for Summary Judgment under Rule 56 (12(b))
  
  * This means factual issues are likely to be relatively simple & generally presented through affidavits (occasionally through depositions, or an evidentiary hearing).
  
  * Pleadings must be liberally construed in favor of sustaining the complaint:* If all allegations are true and can be proven, will P have a cause of action?
  
  * Give P benefit of the doubt ñ give him a chance to demonstrate a meritorious claim
  
  * Amendment ñ Rule 15(a) (see below too) ñ ìFreely given when justice so requires.î
  
  * Liberal policy ñ want to allow meritorious claims
  
  * If 12(b) motion to dismiss granted before answer is filed, P may automatically amend (once only)
  
• If 12(b) motion to dismiss granted after answer has been filed, P must get permission of court to amend
  
  
  
  b.** Why 12(b) motion?
  
  * Faster dismissal (no safe harbor waiting)
  * ìStops clockî on claim ñ judge may sit on 12(b)(6) motion and try to decide, extends answer/response time.* Rule 11 motions pend while claim proceeds
  * Easier to get 12(b)(6) motion granted.* Rule 11 motions for sanctions less likely to be granted
  * Rule 11 annoys court ñ it is more adversarial.* If you just want to get rid of complaint, no revenge/sanctioning, use 12(b)(6)

[b]Here's a Plaintiff response to a 12b6
http://www.bristolcpcs.org/PlResp.html

http://64.233.161.104/search?q=cache...hl=en&ie=UTF-8

• Under Rule 12(b)(6), the allegations of the complaint are accepted as true, all reasonable inferences are drawn in the light most favorable to the plaintiff, and dismissal is appropriate only if it appears that plaintiff could prove no set of facts that would entitle him to relief. See Weiner v. Quaker Oats Co., 129 F.3d 310, 315 (3d Cir. 1997).

Search Terms - - "12(b)(6)" "plaintiff's response" - in actual quotations