Other defenses under Rule 12(b) raise defects in the procedure by which the plaintiff has initiated the action. The defense of insufficient service of process (Rule 12(b)(5)), for example, attacks the manner in which the complaint was served. Similarly, the Rule 12(b)(7) defense of failure to join a necessary party asserts a defect in the scope of the suit as the plaintiff has framed it. Generally, these are curable defects that will not require dismissal of the suit but will have to be remedied before the case proceeds. If service of process was insufficient, for example, the court will order proper service of the complaint before proceeding. Similarly, if an absentee should be joined under Fed. R. Civ. P. 19, the court will order her joined if possible. If the absentee cannot be joined — for example, if her joinder would destroy diversity — the court will determine whether the case can proceed without the absentee, dismissing only if it would be unfair to proceed without her. In these cases, the Rule provides a mechanism to flush out preliminary problems and resolve them before getting into the substantive work of the lawsuit.
The Rule 12(b)(6) objection, unlike the other pre-answer defenses, challenges the substantive merits of the complaint. The defendant who moves to dismiss “for failure to state a claim upon which relief can be granted” asserts that even if the plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief. It hardly makes sense for the court to entertain the action and decide the facts if the law will not provide any relief to the plaintiff even if she proves everything alleged in the complaint. An example would be a suit for negligent infliction of emotional distress in a jurisdiction that does not recognize a right to recover for emotional distress unless the plaintiff also suffers physical injury. If physical injury is required, and the plaintiff cannot allege it, the court might just as well dismiss at the outset since the plaintiff will not be entitled to relief if she is allowed to proceed with the suit.
Although the Rule 12(b)(6) motion is unique in attacking the substantive merits of the plaintiff’s claim, it is akin to the “fatal” defenses under 12(b)(1), (2), and (3), in that it can lead to dismissal if it is upheld by the court. However, a plaintiff whose complaint has been dismissed under Rule 12(b)(6) will virtually always be given at least one opportunity to amend the complaint to state a compensable claim before her case is dismissed. See, generally, Moore’s §15.14. If the plaintiff has grounds to plead all the elements of a proper claim, but had simply failed to include them all in the original complaint, she can amend the complaint to state a compensable claim once the defect is brought to her attention. (For example, a plaintiff who had suffered a physical injury, but had simply failed to allege it in her complaint for emotional distress, could amend to add an allegation of physical injury.) On the other hand, if the plaintiff is unable to amend to state a compensable claim because the facts do not support a necessary element of the claim, then the case will be dismissed. The Rule 12(b)(6) motion is explored in more detail in Chapter 23.