THEGet SCRIVENER Out of My Life! Rule 12 Motions, Part One By Scott Moïse The good news was that I got a sider putting in the time and effort dence that you otherwise may complex, shiny new case that was of drafting and arguing the not have gotten as quickly, if ever. going to be fun. The bad news was motion? Here are some benefits: that my client thought the case • If the pleadings are deficient to What can you lose by making a was “asinine” and wanted it dis- the point that they cannot be cor- motion to dismiss? missed immediately. I could practi- rected by amendment, the court • The motion will reveal your facts cally feel the steam coming though may grant the motion if your and legal theories at the outset far the telephone, listening to him rant argument is clear, compelling, more extensively than if you assert about the waste of time and and timely. them as affirmative defenses. money to defend the case. Oh dear. • Even if the entire case is not dis- • Courts allow amendment freely, Did my client actually believe missed, the court may dismiss and technical difficulties are easi- that our court was going to jump certain claims or defenses, thus ly curable, but just make the case right in and dismiss a well-pleaded narrowing the issues, reducing more expensive on both sides. complaint on the front end before the risk to your client, limiting • The motion gives a clear picture discovery? Yes, he did. With the expensive discovery and trial to the plaintiff of any faults or facts I was working with in this time, and potentially promoting deficiencies she must correct case, were my chances of winning early settlement. before trial, but may not help a motion to dismiss at this stage • You may waive certain defenses your case in the long run. much better than my chances of if you do not bring the motion. • The court may grant your motion winning the Cooper River Bridge Lack of personal jurisdiction and and either transfer the case—or Run? No, maybe less. service of process are two allow the plaintiff to bring it in Sometimes, we must have a motions to consider. another forum or venue—and the hard talk with our clients at the • The plaintiff will be required to new court may apply law and beginning of a lawsuit to decide defend the motion, thereby procedure that is not as favorable whether we have good grounds to exposing arguments and evi- to your client’s interests. support a Rule 12 motion, which includes Rule 12(b) motions to dis- RULE MOTION WHEN miss, Rule 12(c) motions for judg- ment on the pleadings, Rule 12(e) 12(b) Motion to dismiss Before answering if a responsive plead- motions for a more definite state- ing is required and within the time ment, and Rule 12(f) motions to period for answering the complaint. strike. Even if we have grounds, do we really want to make the motion? If no responsive pleading is required, the federal rules allow the opposing What is gained from making a party to assert at trial any defense to Rule 12 motion? that claim. Every defendant, of course, 12(c) Motion for judgment After the pleadings have closed, but wants to get the case dismissed in on the pleadings early enough not to delay trial its entirety, forever, at the outset (preferably with sanctions to be 12(e) Motion for a more Before filing a responsive pleading awarded against your adversary and definite statement and within the time period for an award of fees and costs). The answering the complaint. problem is that most courts are not going to dismiss the case until at 12(f) Motion to strike Before filing a responsive pleading and least some discovery has taken within the time period for answering place, so winning is far from guar- the complaint, OR if no responsive anteed even under the best of cases. pleading required, within 21 days (fed- Given the difficulty in winning eral) or 30 days (state) after service of a motion to dismiss at the begin- the objectionable pleading. ning of a case, why would you con- May 2016 51 When do you need to bring the First things first: Rule 12(b) motions? motions to dismiss If you and your client have dis- These motions are as follows: cussed the risks and rewards of • Lack of subject-matter jurisdic- making a Rule 12 motion and tion (not waivable) decide to file, know the deadlines • Lack of personal jurisdiction in the rules. • Improper venue • Insufficient process Must you always bring Rule 12(b) • Insufficient service of process motions prior to answering the • Failure to state a claim upon complaint? which relief can be granted Rule 12(b) states that “[a] • Failure to join a party under Rule motion asserting any of these 19 (indispensable parties) defenses must be made before • Another action is pending pleading if a responsive pleading between the same parties for the is allowed.” A strict reading for same claim (South Carolina state Rule 12(h) “leads to the conclusion court only) that the district judge must deny any Rule 12(b) motion made after The only Rule 12(b) motion that a responsive pleading is inter- goes to the merits is failure to state posed as being too late.” 5C a claim under Rule 12(b)(6). Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, WHEN: Motions to dismiss under Federal Practice and Procedure § Rule 12(b)—except lack of subject- 1361 (3d ed. 1998) [hereinafter matter jurisdiction, failure to join “Wright & Miller”]. No South an indispensable party, and failure Carolina cases address this issue, to state a claim—must be made but the authors of the Wright & before answering the complaint. Miller treatise believe that courts See Fed. R. Civ. P. 12(b)(h). The three will allow Rule 12 motions after exceptions may be raised even as filing an answer: late as trial. Id. [F]ederal courts have allowed Successive Rule 12(b) motions to untimely motions if the dismiss are prohibited (with some defense has been previously exceptions). included in the answer. In this You may combine Rule 12 context, the motion becomes motions. However, if you bring a tantamount to a preliminary motion under Rule 12, you must hearing under Rule 12(d). assert all defenses under Rule 12 Moreover, under Rule 12(h) the that are available at the time of fil- defenses of lack of subject ing because you cannot bring matter jurisdiction, Rule another Rule 12 motion to assert 12(b)(1), failure to state a defenses that you did not raise in claim upon which relief can the initial motion. See Fed. R. Civ. P. be granted, Rule 12(b)(6), and 12(h)(2); S.C. R. Civ. P. 12(h)(2); failure to join a party under Patterson v. Whitlock, 392 F. App’x 185, Rule 19, Rule 12(b)(7), are pre- 189 (4th Cir. 2010) (holding that served from the waiver mech- defendants could not make a sec- anism by the express terms of ond motion to dismiss based on subdivision (h). Thus, motions service of an incomplete complaint raising any of these matters because they had already made a may be considered by the prior motion to dismiss based on court even when interposed other service grounds); Glenn v. Sch. after the responsive pleading Dist. No. Five of Anderson Cty., 294 S.C. has been filed, although tech- 530, 534, 366 S.E.2d 47, 49 (Ct. App. nically they no longer are Rule 1988) (“Rule 12(g) governs consolida- 52 SC Lawyer 12(b) motions. tion of defenses in a Rule 12 motion. It provides that a party Id. making a motion under the rule who omits ‘any defense or objection adjudicate the matter before it.” 3:12-02074-MB, 2013 WL 789958, at then available to him which this Affirmative Ins. Co. v. Williams, No. *2 (D.S.C. Mar. 4, 2013). rule permits to be raised by motion, 5:14-CV-04087-JMC, 2015 WL In federal court, Rule 12(b) he shall not thereafter make a 3968436, at *6 (D.S.C. June 30, 2015) motions are typically based on the motion based on the defense or (granting Rule 12(b)(1) motion on a defendant’s belief that the claim objection so omitted, except ... as declaratory judgment issue asking does not involve a federal question, provided in subsection (h)(2).’”). the court to find that the insurer the claim does not meet require- In one case, the defendant had not acted in bad faith because ments of diversity of citizenship waived personal jurisdiction by that claim was not ripe); see also between the parties, or the amount failing to bring a 12(b)(2) motion Zander v. United States, 494 F. App’x in controversy does not exceed the prior to answering, even though he 386, 388 (4th Cir. 2012) (affirming required jurisdictional amount. 5B asserted lack of personal jurisdic- dismissal under Rule 12(b)(1) based Wright & Miller § 1350. Other tion as an affirmative defense in on plaintiff’s failure to file com- grounds for a Rule 12(b)(1) motion, the answer. See Briksza v. Moloney, plaint within the relevant six- which have also been brought as No. CIV. 08-CV-01785, 2009 WL month limitations period); Edens v. grounds for 12(b)(6) motions, may 1767594, at *4 (D.N.J. June 19, 2009).