The Motion to Dismiss

INTRODUCTION

The defendant usually responds to the plaintiff’s complaint by filing an answer as provided in Fed. R. Civ. P. 12(a). (For an example, see the answer to the Schulansky complaint, Chapter 33.) However, the rules provide a second option in limited circumstances: If the defendant has certain preliminary objections to the suit, she may avoid answering immediately by filing a motion to dismiss the complaint instead under Fed. R. Civ. P. 12(b). See Jones’s motion to dismiss in the Schulansky case, infra, p. 693.

Two important points about such “pre-answer motions” should be made at the outset. First, filing a pre-answer motion under Rule 12(b) is an alternative to answering the complaint. A defendant who moves to dismiss under Rule 12(b) need not answer the complaint until after the motion is decided. See Rule 12(a)(4). If she prevails on the motion, she may never have to answer. This can be a strong tactical advantage since filing an answer may require the defendant to admit damaging allegations in the complaint or undertake substantial factual investigation.

Second, filing a pre-answer motion is entirely optional. Defendants are not required to use it to raise the defenses listed in Rule 12(b); each may be raised in the answer instead. See Fed. R. Civ. P 12(b), which provides that the listed defenses “may” be raised by pre-answer motion. What, then, is the point of providing a separate device for raising these particular defenses?

Essentially, the Rules provide this device in order to short-circuit the usual litigation process in cases in which the defendant has a valid defense, evident from the outset, to the court proceeding with the case. These defenses are of two kinds. Some of the 12(b) defenses are immediately fatal to the plaintiff’s case. For example, if the court lacks subject matter jurisdiction over the action (Rule 12(b)(1)), it has no power to render a valid judgment; it would be a useless charade for it to go any further with the action. The same is true if the court is not a proper venue (Rule 12(b)(3)) or lacks personal jurisdiction over the defendant (Rule 12(b)(2)). A defendant should not even be required to answer the allegations in the complaint if the case has been brought in the wrong court. To protect the defendant from such inappropriate suits, Rule 12(b) provides an avenue to secure immediate dismissal in cases where the court is powerless to do anything else.