Motions - Pretrial motions, including motions addressed to face of pleadings, motions to dismiss, and summary judgment motions

Learning Outcomes

After reading this article, you will be able to identify and distinguish the main types of pretrial motions in federal civil procedure, including motions to dismiss, motions addressed to the face of the pleadings, and summary judgment motions. You will understand the grounds, timing, and procedural requirements for each, and be able to apply these principles to MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules and strategic use of pretrial motions in federal civil litigation. This includes:

  • Recognizing the types and purposes of pretrial motions.
  • Knowing the grounds for motions to dismiss and when they must be raised.
  • Understanding motions addressed to the face of the pleadings (e.g., failure to state a claim).
  • Applying the standards for summary judgment and the evidentiary requirements.
  • Distinguishing between motions for judgment on the pleadings and summary judgment.
  • Identifying the procedural effects of these motions on the litigation process.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Which of the following is NOT a proper ground for a Rule 12(b) motion to dismiss?
    1. Lack of subject matter jurisdiction
    2. Failure to state a claim upon which relief can be granted
    3. Failure to join a necessary party
    4. Failure to file a reply to an answer
  2. A defendant files an answer but omits the defense of improper venue. Can the defendant raise improper venue later in the case?
    1. Yes, at any time before trial
    2. Yes, but only with leave of court
    3. No, the defense is waived
    4. Yes, but only after discovery
  3. What must a party show to obtain summary judgment?
    1. That the pleadings state a claim for relief
    2. That there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
    3. That the opposing party failed to answer the complaint
    4. That the court lacks personal jurisdiction

Introduction

Pretrial motions are essential procedural tools in federal civil litigation. They allow parties to challenge the sufficiency of claims or defenses, clarify issues, and potentially resolve cases without trial. The most commonly tested pretrial motions on the MBE are motions to dismiss, motions addressed to the face of the pleadings, and summary judgment motions. Understanding their timing, grounds, and consequences is key for exam success.

Types of Pretrial Motions

Pretrial motions are requests made to the court before trial begins. The main types relevant for the MBE are:

  • Motions to dismiss (Rule 12(b))
  • Motions for judgment on the pleadings (Rule 12(c))
  • Motions for summary judgment (Rule 56)

Each serves a distinct function and has specific procedural rules.

Key Term: Motion to Dismiss
A request asking the court to terminate a case at an early stage, usually for a legal or procedural defect apparent from the pleadings.

Key Term: Judgment on the Pleadings
A motion seeking judgment based solely on the content of the pleadings, after they are closed but before discovery or trial.

Key Term: Summary Judgment
A motion requesting judgment where there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law, based on evidence beyond the pleadings.

Motions to Dismiss (Rule 12(b))

A motion to dismiss challenges the legal sufficiency of the complaint or raises certain procedural defects. The most common grounds are:

  • Lack of subject matter jurisdiction (can be raised at any time)
  • Lack of personal jurisdiction
  • Improper venue
  • Insufficient process or service
  • Failure to state a claim upon which relief can be granted
  • Failure to join a required party

Some defenses (personal jurisdiction, venue, process, service) are waived if not raised in the first response (answer or pre-answer motion). Others (subject matter jurisdiction, failure to state a claim, failure to join a required party) can be raised later.

Key Term: Waivable Defense
A defense that is lost if not raised in the first Rule 12 response (answer or pre-answer motion).

Motions Addressed to the Face of the Pleadings

Certain motions test the adequacy of the pleadings themselves, without reference to evidence. The most important are:

  • Motion to dismiss for failure to state a claim (Rule 12(b)(6))
  • Motion for judgment on the pleadings (Rule 12(c))

A Rule 12(b)(6) motion is usually made before answering, while a Rule 12(c) motion is made after the pleadings are closed (i.e., after the answer is filed).

A court deciding either motion assumes the truth of all well-pleaded facts in the complaint (or answer) and asks whether, if those facts are true, the party is entitled to relief.

Summary Judgment (Rule 56)

Summary judgment is a procedure for resolving cases without trial when there is no genuine dispute as to any material fact. Either party may move for summary judgment after the close of discovery and before trial.

The moving party must show:

  • There is no genuine dispute as to any material fact, and
  • The movant is entitled to judgment as a matter of law.

The court considers evidence such as affidavits, depositions, admissions, and documents. Mere allegations in the pleadings are not enough to defeat summary judgment.

Key Term: Material Fact
A fact that could affect the outcome of the case under the governing law.

Key Term: Genuine Dispute
A real, substantial conflict in the evidence that could lead a reasonable jury to find for either side.

Worked Example 1.1

A plaintiff sues a defendant for breach of contract in federal court. The defendant files a motion to dismiss for lack of personal jurisdiction and improper venue, but omits a defense of insufficient service of process. The court denies the motion, and the defendant answers without raising insufficient service. Can the defendant later move to dismiss for insufficient service?

Answer: No. Insufficient service of process is a waivable defense. Because the defendant failed to raise it in the first Rule 12 response (motion or answer), the defense is waived and cannot be raised later.

Worked Example 1.2

After discovery, the defendant moves for summary judgment, arguing that the plaintiff has no evidence of damages. The plaintiff submits an affidavit from an expert witness estimating damages. Is summary judgment appropriate?

Answer: No. The plaintiff's affidavit creates a genuine dispute as to the amount of damages, a material fact. Summary judgment must be denied if a reasonable jury could find for the non-moving party based on the evidence.

Exam Warning

On the MBE, be alert to the timing of motions and the waiver of certain defenses. If a defense is not raised in the first Rule 12 response, it may be lost forever.

Revision Tip

Always distinguish between a motion to dismiss (tests legal sufficiency), a motion for judgment on the pleadings (tests sufficiency after pleadings are closed), and summary judgment (tests for factual disputes based on evidence).

Key Point Checklist

This article has covered the following key knowledge points:

  • Pretrial motions include motions to dismiss, motions on the pleadings, and summary judgment motions.
  • Rule 12(b) motions to dismiss must be timely; some defenses are waived if not raised early.
  • Motions to dismiss for failure to state a claim and motions for judgment on the pleadings test the sufficiency of the pleadings.
  • Summary judgment is granted only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
  • The court considers evidence beyond the pleadings for summary judgment, but only the pleadings for Rule 12(b)(6) and Rule 12(c) motions.
  • Understanding the timing, grounds, and consequences of these motions is essential for MBE success.

Key Terms and Concepts

  • Motion to Dismiss
  • Judgment on the Pleadings
  • Summary Judgment
  • Waivable Defense
  • Material Fact
  • Genuine Dispute
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