Motions - Pretrial motions, including motions addressed to f...

Learning Outcomes

This article explains pretrial motions in federal civil procedure, including:

• Distinguishing Rule 12(b) motions to dismiss, Rule 12(c) motions for judgment on the pleadings, and Rule 56 summary judgment motions in terms of purpose, timing, and record considered.
• Identifying all Rule 12(b) defenses, their proper form (motion or answer), the deadlines for asserting them, and which ones are irrevocably waived if omitted from the first Rule 12 response.
• Applying the Rule 12(b)(6) plausibility standard to evaluate whether the factual allegations in a complaint or defense state a legally sufficient claim under modern federal pleading rules.
• Recognizing when a Rule 12 motion that relies on materials outside the pleadings must be converted into a Rule 56 summary judgment motion and what procedural protections follow.
• Applying the Rule 56 summary judgment standard, evidentiary burdens, and burden‑shifting framework to determine when judgment without trial is appropriate on the MBE.
• Distinguishing the materials the court may consider on a Rule 12(b)(6)/12(c) motion versus those required for summary judgment, and understanding how that difference shapes exam fact patterns.
• Determining the procedural effects of granting or denying these motions on amendment, default, partial summary judgment, and the overall progress of litigation.
• Using these motions strategically along a typical federal litigation timeline—complaint, Rule 12 practice, discovery, and dispositive motions—to spot and avoid common MBE traps about waiver and premature motions.

MBE Syllabus

For the MBE, you are required to understand pretrial motion practice in federal civil litigation, with a focus on the following syllabus points:

• Types and purposes of pretrial motions (Rule 12(b), 12(c), 56).
• Grounds, timing, and waiver rules for motions to dismiss under Rule 12(b).
• Motions addressed to the face of the pleadings, especially failure to state a claim (Rule 12(b)(6)) and judgment on the pleadings (Rule 12(c)).
• The plausibility standard for pleading and how courts evaluate well‑pleaded facts versus legal conclusions.
• Summary judgment standards under Rule 56, including what counts as “no genuine dispute of material fact.”
• Distinguishing Rule 12(b)(6) and 12(c) motions from summary judgment in terms of timing, materials considered, and consequences.
• The procedural impact of granting or denying these motions, including default, leave to amend, and partial summary judgment.
• How Rule 12 motions interact with other pretrial steps (answer, discovery, and later trial motions).

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 central to federal civil practice and heavily tested on the MBE. They allow parties to:

• Attack the sufficiency of claims or defenses on the pleadings.
• Raise threshold procedural defects (jurisdiction, venue, service).
• Obtain judgment where, even with discovery completed, no reasonable factfinder could rule for the opposing party.

The MBE regularly embeds the outcome of a fact pattern in subtle timing or waiver issues. Knowing which motion, when, on what record, and with what consequences is critical.

Types of Pretrial Motions

Pretrial motions are requests to the court made before trial. The main dispositive pretrial motions for MBE purposes are:

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

You may also see non‑dispositive Rule 12 motions, such as a motion for a more definite statement (12(e)) and a motion to strike (12(f)), but exam questions focus overwhelmingly on 12(b), 12(c), and 56.

Key Term: Motion to Dismiss
A request asking the court to terminate a case (or specific claims) at an early stage based on legal or procedural defects, typically raised under Rule 12(b).

Key Term: Judgment on the Pleadings
A motion under Rule 12(c) seeking judgment based solely on the content of the pleadings (and any documents properly incorporated into them), after the pleadings are closed but before trial.

Key Term: Summary Judgment
A motion under Rule 56 requesting judgment when 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.

Why the Distinctions Matter

All three motions can end a case (or a claim) without trial, but they operate at different times and on different records:

• A Rule 12(b) motion tests whether the case can go forward at all.
• A Rule 12(c) motion tests legal sufficiency after both sides have pleaded, but before evidence is developed.
• A Rule 56 motion tests whether, given the evidence produced in discovery, any reasonable factfinder could find for the non‑movant.

Confusing these can lead to wrong answers on the MBE. Typical traps include:

• Treating a Rule 12(b)(6) motion (pleadings only) as if the plaintiff had to produce evidence.
• Ignoring waiver of personal‑jurisdiction or venue defenses when a defendant fails to include them in their first Rule 12 response.
• Missing that a motion styled “12(b)(6)” filed after an answer is really a Rule 12(c) motion on the pleadings.

Where These Motions Fit in the Litigation Timeline

A very simplified federal civil timeline is:

• Complaint filed.
• Defendant responds by either:
  • A pre‑answer Rule 12 motion, or
  • An answer (which may include Rule 12 defenses).
• Pleadings close (complaint, answer, and any required replies are filed).
• Discovery.
• Summary judgment motions.
• Trial (with possible trial motions such as judgment as a matter of law, which use a similar standard to summary judgment but are made at trial).

Rule 12(b) and 12(c) motions are focused on the pleadings stage; Rule 56 predominates after discovery.

Motions to Dismiss (Rule 12(b))

A Rule 12(b) motion to dismiss challenges either:

• The court’s power to hear the case, or
• The legal sufficiency of the complaint (or sometimes a defense).

The seven Rule 12(b) defenses are:

• (1) Lack of subject matter jurisdiction
• (2) Lack of personal jurisdiction
• (3) Improper venue
• (4) Insufficient process (problem with the summons or papers)
• (5) Insufficient service of process
• (6) Failure to state a claim upon which relief can be granted
• (7) Failure to join a required party under Rule 19

Key Term: Rule 12(b)(6) Motion
A motion asserting that, even assuming all well‑pleaded factual allegations in the complaint are true, they do not state a legally cognizable claim for relief.

Key Term: Waivable Defense
A defense that is lost if not raised in the defendant’s first Rule 12 response (either a Rule 12 motion or the answer).

On the MBE, you must know which of these defenses can be raised late, which are waived if omitted, and how they can be raised (motion versus answer).

How a Rule 12(b) Motion Works Procedurally

• A defendant may file a pre‑answer Rule 12(b) motion within the time allowed to answer (generally 21 days after service, or 60 days after mailing of a waiver).
• Filing a proper 12(b) motion extends the time to answer; if the motion is denied, the defendant generally has 14 days after the ruling to answer.
• Instead of a pre‑answer motion, the defendant may bypass motions and file an answer that includes Rule 12 defenses.

Rule 12(h) then governs waiver of certain defenses depending on whether and how the defendant has used Rule 12.

Timing and Waiver of Rule 12(b) Defenses

Rule 12 divides the defenses into three timing categories:

• Never waived (can be raised at any time, including on appeal):

  • Lack of subject matter jurisdiction (12(b)(1))

• Waivable if not raised in the first Rule 12 response (pre‑answer motion or answer, whichever is first):

  • Lack of personal jurisdiction (12(b)(2))
  • Improper venue (12(b)(3))
  • Insufficient process (12(b)(4))
  • Insufficient service of process (12(b)(5))

• Can be raised any time up to and including trial (but not after judgment becomes final):

  • Failure to state a claim (12(b)(6))
  • Failure to join a required party (12(b)(7))

If a defendant files a pre‑answer Rule 12(b) motion, all defenses in the second group (12(b)(2)–(5)) that are not included in that motion are waived. The defendant cannot file a second 12(b) motion later to add a missing personal‑jurisdiction or venue defense.

Key Term: Consolidation of Defenses
The Rule 12 requirement that all available Rule 12(b)(2)–(5) defenses be joined in a single pre‑answer motion; omitted defenses in this group are waived.

Important nuances for waiver on the MBE:

• The “first Rule 12 response” means either:
  • The first Rule 12 motion, or
  • The answer (if no pre‑answer motion is filed).
• If a defendant files no pre‑answer motion and instead answers, they must include any 12(b)(2)–(5) defenses in that answer or those defenses are waived.
• 12(b)(6) and 12(b)(7) may be raised:
  • By motion,
  • In a pleading, or
  • At trial (but not for the first time on appeal).

Subject Matter Jurisdiction: Special Treatment

Lack of subject matter jurisdiction (SMJ) is unique:

• It can be raised by any party at any time, including on appeal.
• The court must dismiss whenever it determines SMJ is lacking, even if no party has objected.
• A judgment entered without SMJ is void.

In practice:

• A 12(b)(1) motion can be made early (e.g., alongside other 12(b) motions) or late (even after trial).
• A court ruling on SMJ can:
  • Accept the complaint’s jurisdictional allegations as true (facial attack), or
  • Look beyond the pleadings and consider evidence such as affidavits (factual attack).

On the MBE, if you see a late attack on SMJ, the correct answer usually is that the court must address it and dismiss if jurisdiction is lacking.

Failure to State a Claim: The Plausibility Standard

Rule 12(b)(6) applies the modern “plausibility” standard from Twombly and Iqbal.

Key Term: Plausibility Standard
The requirement that a complaint include enough factual matter, accepted as true, to state a claim that is plausible—not merely possible—on its face.

A court deciding a 12(b)(6) motion:

• Accepts all well‑pleaded factual allegations as true.
• Disregards bare legal conclusions (e.g., “the defendant was negligent,” “the defendant discriminated against the plaintiff”) when they are unsupported by specific facts.
• Draws reasonable inferences in favor of the plaintiff.
• Asks whether, with those facts and inferences, the substantive law would allow relief.

The court may consider:

• The complaint and its attached exhibits.
• Documents explicitly referenced in the complaint and central to the claim (often treated as part of the pleadings).
• Matters of which the court may take judicial notice (e.g., public records).

It may not consider affidavits, deposition testimony, or other evidentiary materials outside the pleadings unless it converts the motion to summary judgment (discussed later).

If a complaint is dismissed under 12(b)(6):

• Courts generally allow at least one opportunity to amend, unless amendment would be futile (e.g., the defect is purely legal and cannot be cured by more facts).
• A dismissal “with prejudice” is a decision on the merits and has claim‑preclusive effect; a dismissal “without prejudice” does not.

Other Early Rule 12 Motions

Two other pre‑answer motions sometimes appear on the MBE:

• Motion for a more definite statement (Rule 12(e)) – when a pleading is so vague or ambiguous that a party cannot reasonably prepare a response.
  • Must be made before a responsive pleading.
  • If granted and not obeyed, the court may strike the pleading.
• Motion to strike (Rule 12(f)) – to strike from a pleading:
  • Redundant, immaterial, impertinent, or scandalous matter, or
  • An insufficient defense.

These motions do not terminate the case, but they may narrow or clean up the pleadings.

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 (12(b)(5)) is a waivable defense. Because the defendant failed to raise it in the first Rule 12 response (the pre‑answer motion), the defense is waived and cannot be raised later in an answer, another motion, or at trial.

Worked Example 1.2

A tennis player from State A sues a reporter from State B in federal court in State B, alleging breach of contract. The reporter files a Rule 12(b)(3) motion to dismiss for improper venue, which is denied. In the answer, the reporter asserts lack of personal jurisdiction as an affirmative defense. The plaintiff moves to strike that defense as waived. How should the court rule?

Answer:
The court should grant the motion to strike the personal‑jurisdiction defense. Lack of personal jurisdiction is a Rule 12(b)(2) defense that is waived if not included in the defendant’s first Rule 12 response. Because the reporter filed an earlier Rule 12 motion and did not include lack of personal jurisdiction, that defense is waived.

Motions Addressed to the Face of the Pleadings

Certain motions test the adequacy of the pleadings themselves, without reference to evidence:

• 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. A Rule 12(c) motion is made after the pleadings are closed—typically after the complaint and answer (and any required replies), but early enough not to delay trial.

Substantively, the standard is the same:

• The court assumes the truth of all well‑pleaded factual allegations in the complaint (and for a 12(c) motion, in the answer as well).
• It draws reasonable inferences in favor of the non‑moving party.
• It asks whether, if those facts are true, the law entitles that party to relief.

The difference lies in timing and the pleadings considered.

Key Term: Convertible Motion
A Rule 12(b)(6) or 12(c) motion that presents matters outside the pleadings and is treated as a motion for summary judgment under Rule 56 if the court does not exclude those materials.

Rule 12(c) Motions in More Detail

A Rule 12(c) motion:

• Can be made by either plaintiff or defendant.
• Requires that “the pleadings are closed” (all required initial pleadings filed).
• May be directed to:
  • The entire case, or
  • One or more claims or defenses.

Because the court considers the answer, a plaintiff can sometimes use 12(c) offensively—pointing to admissions in the answer that show there is no legal defense.

Examples of proper 12(c) situations:

• Defendant admits all elements of the claim but asserts an affirmative defense that fails as a matter of law.
• The complaint and answer agree on the facts, and only a legal issue remains.

When a Rule 12 Motion Becomes Summary Judgment

If a party attaches evidence—affidavits, deposition excerpts, documents outside the pleadings—to a 12(b)(6) or 12(c) motion, the court has two choices:

• Exclude the outside materials and treat the motion as a pure Rule 12 motion, or
• Consider the outside materials and treat the motion as one for summary judgment under Rule 56.

Rule 12(d) requires that if the motion is treated as summary judgment:

• All parties must be given a reasonable opportunity to present all material relevant to the motion.
• The usual Rule 56 standards apply (no genuine dispute of material fact, etc.).

On the MBE, a common trap is a motion labeled “12(b)(6)” that attaches evidence and asks the court to resolve factual disputes. If the court considers that evidence, it is actually ruling on summary judgment, not on the pleadings.

Certain materials are not considered “outside the pleadings” and may be used on 12(b)(6)/12(c) without conversion, such as:

• The complaint and answer.
• Attachments to the complaint.
• Documents incorporated by reference and central to the claim.
• Matters of public record subject to judicial notice.

Worked Example 1.3

A defendant files an answer denying liability, then files a motion styled “Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim.” The motion argues that even if the complaint’s allegations are true, the law does not recognize the plaintiff’s theory. No evidence outside the pleadings is attached. How should the court treat the motion?

Answer:
The court should treat the motion as a Rule 12(c) motion for judgment on the pleadings, not as a 12(b)(6) motion, because the defendant has already answered. The legal standard is the same: the court assumes the complaint’s well‑pleaded facts are true and asks whether they state a plausible claim for relief.

Worked Example 1.4

A defendant moves under Rule 12(b)(6) to dismiss a negligence claim. In support, the defendant files an affidavit saying that he was out of the country when the accident occurred and attaches airline records. The plaintiff does not file any evidence, insisting that the court must accept the complaint’s allegation that the defendant was driving the car. The court considers the records. How should the motion be treated?

Answer:
Because the court considered materials outside the pleadings (the affidavit and airline records), the motion must be treated as a Rule 56 motion for summary judgment. On that record, there is no genuine dispute of material fact about whether the defendant was present at the scene, so summary judgment would be appropriate unless the plaintiff shows a basis to obtain more discovery or presents contrary evidence.

Summary Judgment (Rule 56)

Summary judgment is a procedure for resolving cases (or particular claims or issues) without trial when there is no genuine dispute as to any material fact.

Either party may move for summary judgment:

• On the entire case, or
• On one or more claims or defenses, or
• On discrete issues (partial summary judgment).

In federal court, a party may move for summary judgment at any time until 30 days after the close of discovery, unless the court sets a different deadline.

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.

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

Key Term: Genuine Dispute
A real, substantial conflict in the evidence such that a reasonable jury could return a verdict for the non‑moving party.

Key Term: Burden of Production
The obligation of a party opposing summary judgment to come forward with admissible evidence showing a genuine dispute of material fact on each element on which that party bears the burden of proof at trial.

Evidence Considered on Summary Judgment

Unlike Rule 12 motions, summary judgment is decided on an evidentiary record. The court considers materials that can be presented in admissible form at trial, including:

• Deposition transcripts.
• Answers to interrogatories.
• Admissions.
• Affidavits or declarations based on personal knowledge.
• Documents, recordings, or other tangible evidence.

Key points for the MBE:

• Mere allegations or denials in the pleadings are not enough to defeat summary judgment.
• The non‑moving party must point to actual evidence that would allow a reasonable jury to find in its favor.
• The evidence need not be in trial form yet (e.g., affidavits may report what a witness would testify to), but it must be reducible to admissible evidence.

The court:

• Views the evidence in the light most favorable to the non‑moving party.
• Does not weigh evidence or assess witness credibility.
• Grants summary judgment only if no reasonable jury could find for the non‑movant on the essential issues.

How the Burden Shifts

The party moving for summary judgment must first meet an initial burden:

• If the movant would bear the burden of persuasion at trial (e.g., a plaintiff moving for summary judgment on its own claim), the movant must produce evidence that would entitle it to judgment as a matter of law if uncontroverted—essentially evidence that would justify a directed verdict.
• If the movant would not bear the burden at trial (e.g., a defendant moving for summary judgment), the movant can either:
  • Produce affirmative evidence negating an element of the claim, or
  • Show that the non‑movant lacks evidence to support an essential element after a fair opportunity for discovery (for example, by pointing to gaps in the discovery record).

Once the movant does this, the burden of production shifts to the non‑movant, who must point to specific evidence showing a genuine dispute of material fact on each essential element.

If the non‑movant fails, summary judgment must be granted on that claim or issue.

Timing, Partial Summary Judgment, and Premature Motions

• Summary judgment can be partial: the court may grant judgment on liability but leave damages for trial, or resolve some claims while others proceed.
• A partial summary judgment order is usually interlocutory (not a final judgment) but narrows the issues for trial.
• A party faced with a premature summary judgment motion (e.g., before it has had time to take discovery on key issues) can request additional time under Rule 56(d) by submitting an affidavit explaining what discovery is needed and why.

Worked Example 1.5

After discovery, the defendant moves for summary judgment, arguing that the plaintiff has no evidence of damages in a negligence action. The plaintiff submits an affidavit from an expert witness estimating medical expenses and lost wages based on the plaintiff’s records. Is summary judgment appropriate?

Answer:
No. The plaintiff’s expert affidavit is admissible summary‑judgment evidence and supports a reasonable estimate of damages. This creates a genuine dispute as to a material fact (damages). A reasonable jury could find for the plaintiff on damages, so summary judgment must be denied.

Worked Example 1.6

A manufacturer sues a product reviewer for defamation. The court rules that the manufacturer is a public figure and must prove “actual malice” by clear and convincing evidence. The reviewer moves for summary judgment and submits an affidavit describing the testing he performed and stating that he did not know his statements were false and did not entertain serious doubts about their truth. The manufacturer files no evidence in response, relying only on the pleadings. How should the court rule?

Answer:
The court should grant summary judgment for the reviewer. Once the reviewer supported his motion with an affidavit negating actual malice, the burden of production shifted to the manufacturer to present evidence from which a reasonable jury could find actual malice by clear and convincing evidence. Because the manufacturer produced no evidence, there is no genuine dispute of material fact on that essential element.

Worked Example 1.7

In a diversity action, a plaintiff alleges that a toaster exploded on January 1, 2012, and sues the manufacturer on April 1, 2014. The statute of limitations is two years from the later of (i) the injury date or (ii) the date the defect should reasonably have been discovered. The manufacturer moves for summary judgment on statute of limitations grounds. The plaintiff claims she discovered the defect on May 1, 2012, but after discovery she has no evidence to support that later discovery date. What should the court do?

Answer:
The court should grant summary judgment for the manufacturer. The undisputed explosion date is January 1, 2012. The plaintiff bears the burden to prove a later “discovery date” to extend the limitations period. Because she cannot produce admissible evidence of a later discovery date, no reasonable jury could find that the suit is timely. There is no genuine dispute of material fact on the limitations issue.

Worked Example 1.8

A defendant moves for summary judgment one week after answering the complaint, before any discovery has occurred. The motion argues that the plaintiff cannot prove causation and attaches no evidence. The plaintiff responds with an affidavit under Rule 56(d) explaining that discovery from the defendant and third‑party witnesses is necessary to obtain causation evidence. How should the court rule?

Answer:
The court should deny or defer ruling on the summary judgment motion. The defendant has not pointed to any evidence showing an absence of proof on causation; it has only asserted that the plaintiff lacks evidence. Moreover, the plaintiff has properly invoked Rule 56(d), explaining the need for discovery. Summary judgment is inappropriate when the non‑movant has not yet had a fair opportunity for discovery on essential elements.

Worked Example 1.9

In a breach‑of‑contract case, both sides move for summary judgment on liability. The evidence shows that the defendant signed the contract and did not perform, and there is no dispute about the meaning of the contract’s terms. However, there is conflicting evidence about the amount of damages. How should the court proceed?

Answer:
The court should grant partial summary judgment on liability for the plaintiff, because there is no genuine dispute of material fact on breach. The court should deny summary judgment on damages, because the conflicting evidence creates a genuine dispute of material fact on that issue. Damages will be determined at trial.

Worked Example 1.10

A plaintiff sues for unpaid wages. In its answer, the defendant admits that the plaintiff worked the hours alleged and was not paid, but asserts an affirmative defense that the claim is barred by a six‑month contractual limitations period. The contract attached to the complaint contains no such clause. The plaintiff moves for judgment on the pleadings under Rule 12(c). How should the court rule?

Answer:
The court should grant judgment on the pleadings for the plaintiff. The defendant’s answer admits the factual elements of the claim and relies on an affirmative defense that is contradicted by the contract attached to the complaint. Because there is no genuine dispute about the contents of the contract, the defense fails as a matter of law, and on the pleadings the plaintiff is entitled to judgment.

Exam Warning

On the MBE, be alert to these common traps:

• Waiver of Rule 12(b)(2)–(5) defenses:

  • Personal jurisdiction, venue, process, and service objections are lost if not included in the first Rule 12 response (motion or answer).
  • Look carefully at the sequence: a prior 12(b) motion that omits one of these defenses waives it.

• Confusing 12(b)(6)/12(c) with summary judgment:

  • 12(b)(6) and 12(c) are based on pleadings (plus certain attached or judicially noticed documents); no evidentiary record or credibility weighing is involved.
  • If the court considers affidavits or deposition testimony, the motion is effectively a Rule 56 motion.

• Requiring evidence at the wrong stage:

  • On a 12(b)(6) or 12(c) motion, the plaintiff is not required to produce evidence—only to allege enough facts to state a plausible claim.
  • On summary judgment, by contrast, the non‑movant must point to evidence; mere allegations in the complaint are insufficient.

• Premature summary judgment:

  • When a defendant moves for summary judgment before the plaintiff has had a fair chance to obtain discovery on key elements, the proper response is often a Rule 56(d) request, not immediate judgment.

• Effect of grants and denials:

  • Granting a 12(b)(6) motion typically invites amended pleadings; granting summary judgment results in a judgment that is immediately appealable.
  • Partial summary judgment narrows the issues but usually does not end the case.

Revision Tip

Always distinguish clearly:

• Rule 12(b)(6) – Failure to state a claim:

  • Tests legal sufficiency of the complaint using the plausibility standard.
  • Only well‑pleaded factual allegations and incorporated documents count; legal conclusions are ignored.
  • Typically raised before answering, but can be raised through trial.

• Rule 12(c) – Judgment on the pleadings:

  • Same standard as 12(b)(6), but after the pleadings are closed.
  • The court can consider both complaint and answer, including admissions.
  • Frequently used by plaintiffs to attack legally insufficient defenses.

• Rule 56 – Summary judgment:

  • Tests for factual disputes based on evidence beyond the pleadings.
  • Requires “no genuine dispute as to any material fact” and entitlement to judgment as a matter of law.
  • Can resolve all or part of a case; may be denied as premature if essential discovery is incomplete.

On practice questions, when a motion is mislabeled (e.g., “12(b)(6)” filed after an answer, or a 12(b) motion that relies on affidavits), ask yourself:

• What rule actually governs given the timing?
• What record is the court considering (pleadings versus evidence)?

Answer choices usually test this classification.

Key Point Checklist

This article has covered the following key knowledge points:

• Pretrial dispositive motions include Rule 12(b) motions to dismiss, Rule 12(c) motions for judgment on the pleadings, and Rule 56 motions for summary judgment.
• Rule 12(b) lists seven defenses; subject matter jurisdiction is never waived, personal jurisdiction/venue/process/service are waived if omitted from the first Rule 12 response, and failure to state a claim and failure to join a required party can be raised through trial.
• The consolidation rule requires defendants to combine Rule 12(b)(2)–(5) defenses in a single pre‑answer motion; omitted defenses in this group are lost.
• A Rule 12(b)(1) motion for lack of subject matter jurisdiction can be raised at any time and allows the court to look beyond the pleadings.
• Motions to dismiss under Rule 12(b)(6) and motions for judgment on the pleadings under Rule 12(c) test the sufficiency of the pleadings under the plausibility standard, assuming well‑pleaded facts are true but disregarding bare legal conclusions.
• Rule 12(c) is available only after the pleadings are closed and can be used by either party to obtain judgment based on the pleadings, including admissions in the answer.
• A Rule 12(b)(6) or 12(c) motion that relies on matters outside the pleadings and that the court considers must be treated as a summary judgment motion under Rule 56, with all parties given a chance to present evidence.
• Summary judgment may be granted only when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
• On summary judgment, the court considers evidence such as affidavits, depositions, and admissions; mere allegations in the pleadings do not create a genuine dispute.
• The burden of production on summary judgment shifts: once the movant supports the motion, the non‑movant must identify admissible evidence showing a triable issue on each essential element it must prove at trial.
• Courts view the summary‑judgment record in the light most favorable to the non‑moving party and do not weigh credibility.
• Partial summary judgment can resolve some claims or issues (such as liability) while leaving others (such as damages) for trial.
• Understanding how and when to use these motions—and how waiver, timing, and evidentiary rules interact with them—is key for answering MBE civil procedure questions correctly.

Key Terms and Concepts

• Motion to Dismiss
• Judgment on the Pleadings
• Summary Judgment
• Rule 12(b)(6) Motion
• Waivable Defense
• Plausibility Standard
• Consolidation of Defenses
• Convertible Motion
• Material Fact
• Genuine Dispute
• Burden of Production