Form 12-1

Checklist

1. When negotiating an extension of time to respond to a complaint, make sure you deal with the issue of the right to file a preanswer rule 12(b) motion. Plaintiff may negotiate for a waiver of the right to file a preanswer rule 12(b) motion, while defendant may want to extend the time to answer or otherwise respond.

2. When filing a rule 12 motion, be sure to include all available defenses or objections.

3. Remember, CR 12 is designed to expedite early resolution of pleading and procedural issues, so bring such matters to the attention of the court in a timely fashion.

4. Remember that CR 12 is integrated with a number of other civil rules, including the following: CR 7-11, regarding the general use of pleadings; CR 4 and 5, outlining proper form and service of process; CR 6, addressing the computation of time; CR 15, concerning amendments to pleadings; and CR 19, dealing with joinder of persons needed to effect a just adjudication. Review each of these rules before filing your pleading and making decisions concerning a rule 12 motion.

5. In federal court, pay particular attention to jurisdiction over the subject matter. Lack of jurisdiction over the subject matter may be raised at any time and may be raised sua sponte by the court, even on appeal.

6. Remember, in Washington, filing an action in the wrong county may deprive the court of jurisdiction over the claim and subject the claim to dismissal. When filing to beat the statute of limitations, make sure you file in a county where venue is proper. Improper venue will result in dismissal, not a change of venue. The original filing will be ineffective to toll the statute of limitations. 7. If you are entitled to summary judgment, file a rule 56 motion. It is generally not advisable to present matters outside the pleadings in support of a rule 12(b)(6) motion.

8. If the defect in the complaint is correctable, don't bring a rule 12(b)(6) motion, but rather preserve the defense in the answer and direct your discovery at the flaws in the complaint. You avoid the risk of educating your opponent and you avoid the cost and delay of a preresponse motion. If the defect cannot be corrected, a rule 12(b)(6) motion is probably appropriate, but be aware of the risk of waiving omitted defenses.

9. When contemplating a motion to dismiss for failure to state a claim, consider the plaintiff's ability to cure simply by amending the pleadings and balance that limited benefit against the cost of the motion and the free education you will be providing to the plaintiff.

10. Documents whose contents are alleged in the complaint and whose authenticity no party questions, and documents attached to the complaint, may be used in connection with a rule 12(b)

(6) motion to dismiss. Such evidence is not considered "extrinsic" as that term is used in numbers

12 and 13 below.

11. If you are entitled to summary judgment, file a rule 56 motion. Matters outside the pleading should generally not be considered in connection with a rule 12(b)(6) motion.

12. When resisting a rule 12(b)(6) motion that is supported by extrinsic evidence, ask the court for a ruling on whether the extrinsic evidence will be considered. Then respond to the motion with or without extrinsic evidence depending upon the court's ruling.

13. If filing a CR 12(b)(6) motion with extrinsic evidence, move for summary judgment in the alternative to cover your bases. When resisting a CR 12(b)(6) motion for failure to state a claim, include a request for leave to amend in the event the motion is granted.