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Defective Allegation or Insufficient Proof?


Defective Allegation or Insufficient Proof?

Dismissal for Failure to State a Claim Compared to Summary Judgment


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.


Under Rule 12(b)(6) of the Federal Rules (and the similar “demurrer” device in code pleading jurisdictions), a defendant may move to dismiss the plaintiff’s complaint on the ground that it fails to state a claim that entitles the plaintiff to any form of relief. The gist of the defendant’s objection in making the motion is that the “wrong” that the plaintiff describes in his complaint is not recognized as a violation of any legal rights. If that is true, the court would not be able to grant damages or other relief to the plaintiff even if he proved all the facts alleged.

Suppose, for example, that Ferraro sues Gramm for voting Republican, after he promised Ferraro that he wouldn’t. The law does not currently recognize a right to have promises performed unless consideration, estoppel, or some other additional acts make the promise binding. Even if Ferraro proves that Gramm made the promise, a court could not grant her any relief for Gramm’s failure to keep it. Since there is no right to relief on Ferraro’s claim, it would simply place a pointless burden on the court and the parties to proceed with the action. On these facts Gramm could move to dismiss the complaint for failure to state a claim upon which relief can be granted.

Because the purpose of the Rule 12(b)(6) motion is to test whether the plaintiff’s allegations (assuming they can be proved) state a claim for which a court might grant relief, the only question posed by the motion is whether the complaint itself states a legally sufficient claim. Consequently, the court does not consider any other pleadings or evidence in deciding the motion. Nor does the court consider or determine whether the facts alleged in the complaint are true; for purposes of the motion, it assumes that the facts alleged are true. The motion only addresses a purely legal question: whether, if the plaintiff proves the allegations in the complaint, he will have established a cause of action entitling him to some form of relief from the court. In cases like Ferraro’s, dismissal on the basis of the complaint alone is appropriate under this test. Since Ferraro’s complaint does not state a legal wrong for which the court could grant her redress, allowing her to litigate the allegations through discovery and trial would be a waste of both the parties’ and the court’s time.

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