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CHAPTER 23

Defective Allegation or Insufficient Proof?

Dismissal for Failure to State a Claim Compared to Summary Judgment

INTRODUCTION

One major theme of the civil procedure course is “The Perils of Plaintiff” or “all the ways you can bring a lawsuit and never get to trial.” We have already explored a variety of purely procedural defects that may bring the suit to an untimely end, such as lack of jurisdiction, improper venue, and improper service of process. However, there are also several devices that defendants may use to challenge the merits of the plaintiff’s case before trial that may foreclose a trial if the court agrees with the defendant’s objections. The principal devices for such pretrial resolution are the motion to dismiss for failure to state a claim upon which relief can be granted, or “Rule 12(b)(6) motion,” and the motion for summary judgment under Rule 56. This chapter will examine these two motions in turn and offer some examples to help you distinguish them.

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