Durrani, Ayesha 11/22/2021

For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Motion to Dismiss: Overview (Federal)

by Practical Law Litigation
Maintained • USA (National/Federal)

A Practice Note outlining the basic motion to dismiss framework under Rule 12 of the Federal
Rules of Civil Procedure (FRCP). Specifically, this Note explains what a motion to dismiss is,
when a defendant may move to dismiss, why a defendant would (or would not) want to move
to dismiss, the grounds for bringing a motion to dismiss, and the possible outcomes.

Due to the ongoing 2019 novel coronavirus disease (COVID-19) outbreak, many court rules
and procedures may be suspended or modified on a court-by-court basis. For the latest
developments in all US federal district and appellate courts (including court closures, trial
continuances, deadline extensions, changes in filing procedures, and remote-appearance
procedures), see Federal Courts Update: Impact of COVID-19.

Deciding to Make a Motion to Dismiss

Reasons to Make a Motion to Dismiss

Disadvantages of Moving to Dismiss

Effect of a Motion to Dismiss on Discovery

The Timing of a Motion to Dismiss

Computing the Time to Move to Dismiss

Extending the Deadline for a Motion to Dismiss

Grounds for a Motion to Dismiss

Lack of Subject Matter Jurisdiction

Lack of Personal Jurisdiction

Improper Venue
Insufficient Process and Service of Process

Failure to State a Claim on Which Relief Can Be Granted

Failure to Join a Necessary Party

Burden
Waiver
Defenses a Defendant Can Waive

Defenses a Defendant Cannot Waive

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Possible Motion to Dismiss Outcomes

Other FRCP 12 Motions that a Defendant May Make in Response to a Complaint
Motion for a More Definite Statement

Motion to Strike

A motion to dismiss is a procedural device that enables a defendant to dispose of some or all of a plaintiff's claims
at the beginning of a case. In the federal system, FRCP 12 governs motions to dismiss. This Note provides an
overview of a motion to dismiss, including:

• Why a party might want to (or not want to) move to dismiss.

• When to move to dismiss.

• The grounds for bringing a motion to dismiss.

• The possible outcomes of making a motion to dismiss.

This Note also addresses other pre-answer motions a defendant may make in response to a complaint under
FRCP 12.

Deciding to Make a Motion to Dismiss

Making a motion to dismiss is a strategic decision. There are advantages and disadvantages that counsel should
consider.

Reasons to Make a Motion to Dismiss

Depending on the circumstances, a well-founded motion to dismiss can:

• Dispose of a case entirely at the outset.

• Limit the issues in a case.

• Avoid unnecessary costs of discovery and trial.

• Force the plaintiff to show support for its claims.

Disadvantages of Moving to Dismiss

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Before moving to dismiss, counsel should consider that the motion may:

• Reveal their defenses in advance. Under FRCP 15, a plaintiff has a right to amend its complaint once
within 21 days:

• of serving the complaint; or

• after receiving service of an answer or motion to dismiss.

While a defendant would include in its answer any affirmative defenses it would assert in a motion, a
motion to dismiss points out the fatal flaws in a plaintiff's case in greater detail and gives the plaintiff an
opportunity to remedy any pleading defects in an amended complaint.

• Provide a road map of discovery that the plaintiff needs to take to bolster its claims if they survive the
motion.

• Not be worth the cost if the likelihood of success is low.

Effect of a Motion to Dismiss on Discovery

Except in limited circumstances (for example, any private securities action the Private Securities Litigation
Reform Act applies to (15 U.S.C. § 77z-1(b)(1))), a motion to dismiss does not automatically stay discovery. For
more information, see Practice Note, Securities Litigation Involving the Private Securities Litigation Reform Act
(PSLRA).

A defendant may make a motion to stay discovery pending the resolution of its motion to dismiss (see Gurnicz v.
Guindon, 1991 WL 21606, at *2 (E.D. Pa. Feb. 15, 1991) (holding that a defendant must make a timely motion
for a protective order to stay discovery under FRCP 26(c) to be entitled to relief)). However, it is within the trial
court's discretion to permit a requested stay (see Las Vegas Sun, Inc. v. Adelson, 2020 WL 2114352, at *4-7 (D.
Nev. May 4, 2020); FTC v. AMG Servs., Inc., 2012 WL 3730561, at *3-6 (D. Nev. Aug. 28, 2012 (discussing courts'
different standards in granting stays of discovery and enumerating situations where a stay pending a dispositive
motion would be appropriate)).

The Timing of a Motion to Dismiss

A defendant must make a motion to dismiss before filing an answer or any other responsive pleading (FRCP 12(b)).

Unless the FRCP or a federal statute specify another time period, a motion to dismiss is due when the defendant's
answer would have been due (see In re American Express Anti-Steering Rules Antitrust Litigation, 343 F. Supp. 3d
94, 98 (E.D.N.Y. Sep. 26, 2018); Chandler v. Carroll, 2012 WL 252014, at *2 (D. Vt. Jan. 26, 2012)). Specifically,
a defendant must serve a motion to dismiss:

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 3

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Within 21 days of being served with the summons and complaint.

• If the defendant has timely waived service, within:

• 60 days after the plaintiff sent the request, if the defendant is located in the US; or

• 90 days after the plaintiff sent the request, if the defendant is located in a foreign country (FRCP 4(d)
(3) and 12(a)(1)(A)(ii)).

• Within 60 days after service on the US Attorney if the defendant is:

• the US or a US agency; or

• a US officer or employee sued in his official capacity.

(FRCP 12(a)(2).)

• If the defendant is a US officer or employee sued in an individual capacity for an act or omission in
connection with duties the defendant performed on behalf of the US, the later of 60 days after service on:

• the officer or employee; or

• the US Attorney.

(FRCP 12(a)(3).)

If the plaintiff files an amended complaint, the motion to dismiss is due the later of:

• When the answer to the original complaint would have been due.

• 14 days after the plaintiff serves the amended complaint.

(FRCP 15.)

A timely motion to dismiss tolls the time that the defendant needs to file an answer, even if the defendant is only
moving to dismiss some of the plaintiff's claims (FRCP 12(a)(4)(A); Medina v. City of New York, 2020 WL 3050971,
at *3 (S.D.N.Y. Jun. 8, 2020); Lombardo v. Dr. Seuss Enter., L.P., 2017 WL 1378413, at *3-4 (S.D.N.Y. Apr. 7,
2017); Compton v. City of Harrodsburg, 287 F.R.D. 401, 401-02 (E.D. Ky. 2012); Gortat v. Capala Bros., Inc., 257
F.R.D. 353, 366 (E.D.N.Y. 2009); but see Gerlach v. Mich. Bell Tel. Co., 448 F. Supp. 1168, 1174 (E.D. Mich. 1978)
(holding that because separate counts are each independent bases for a lawsuit, filing a motion to dismiss some
of the counts does not toll the time to answer the remaining ones), declined to extend by Strobel v. Ruch, 2020 WL

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 4

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

3893071, at *3 (D.N.M. Jul. 10, 2020); Lopez v. Clark Cty., 2016 WL 7391036, at 5 n.37 (D. Nev. Dec. 20, 2016)
(noting that courts across the country have overwhelmingly rejected Gerlach)).

Computing the Time to Move to Dismiss

When computing the time for the defendant to move to dismiss, counsel must exclude the day of service but count
every day afterward, including Saturdays, Sundays, and legal holidays (FRCP 6(a)(1)(A)-(B)). If the last day of the
response period falls on a Saturday, Sunday, or legal holiday, however, the period continues to run until the end of
the next day that is not a Saturday, Sunday, or legal holiday (FRCP 6(a)(1)(C)).

When a plaintiff serves a defendant using a state-law method, FRCP 12(a) governs the defendant's response time,
even if state law would extend the time for the defendant to respond (see Finishmaster, Inc. v. Blue Lake Motors,
Inc., 2018 WL 6061195, at *4 (C.D. Cal. May 11, 2018); Jane Doe No. 5 v. Epstein, 2008 WL 2782726, at *3 (S.D.
Fla. July 16, 2008); see also Beller & Keller v. Tyler, 120 F.3d 21, 25-26 (2d Cir. 1997) (holding that the time to
respond runs from the defendant's receipt of the summons and complaint, even if state law provides that service is
complete only after plaintiff also mails these documents to the defendant and files proof of service with the court)).

For guidance on how to compute time periods in federal litigation, see Practice Note, Computing and Extending
Time in Federal Litigation.

Extending the Deadline for a Motion to Dismiss

If defense counsel want to extend their motion to dismiss deadline, they can either:

• Stipulate with the plaintiff to move at a later specified date, if the court's local rules or the judge's individual
rules allow it. Some of these rules require counsel to file a stipulation with the court for the presiding judge
to so order. For more information, see Standard Document, Stipulation to Extend Time to Respond to a
Complaint (Federal).

• Make a motion to the court requesting additional time to move to dismiss (FRCP 6(b)(1) (generally
permitting courts to extend deadlines for good cause)).

Grounds for a Motion to Dismiss

A defendant can move to dismiss a plaintiff's claims on the following grounds:

• Lack of subject matter jurisdiction (FRCP 12(b)(1)) (see Lack of Subject Matter Jurisdiction).

• Lack of personal jurisdiction (FRCP 12(b)(2)) (see Lack of Personal Jurisdiction).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 5

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Improper venue (FRCP 12(b)(3)) (see Improper Venue).

• Insufficient process (FRCP 12(b)(4)) (see Insufficient Process and Service of Process).

• Insufficient service of process (FRCP 12(b)(5)) (see Insufficient Process and Service of Process).

• Failure to state a claim on which relief can be granted (FRCP 12(b)(6)) (see Failure to State a Claim on
Which Relief Can Be Granted).

• Failure to join a party under FRCP 19 (FRCP 12(b)(7)) (see Failure to Join a Necessary Party).

Lack of Subject Matter Jurisdiction

Federal courts have limited jurisdiction and can only hear certain types of cases. For example, federal courts have
subject matter jurisdiction over:

• Federal question cases arising under the US Constitution, federal laws, or international treaties to which
the US is a contracting state (28 U.S.C. § 1331).

• Diversity cases between citizens of different states or citizens of a US state and a foreign state, where the
amount in controversy exceeds $75,000, exclusive of interest and costs (28 U.S.C. § 1332).

Federal courts also have exclusive subject matter jurisdiction over certain types of cases, such as:

• Admiralty and maritime civil cases (28 U.S.C. § 1333).

• Bankruptcy cases (28 U.S.C. § 1334).

• Federal patent and copyright cases (28 U.S.C. § 1338).

28 U.S.C. §§ 1330-1369 set out other bases for federal subject matter jurisdiction.

A federal court does not have subject matter jurisdiction over cases that do not meet these standards, and for some
types of cases (such as divorce, alimony, and custody disputes) (see Ankenbrandt v. Richards, 504 U.S. 689, 704
(1992) (discussing the domestic relations exception that divests federal courts of jurisdiction over certain domestic
disputes)). If a court lacks subject matter jurisdiction, it must dismiss the action.

For more information on when a federal court has subject matter jurisdiction over a case, see Practice Note,
Commencing a Federal Lawsuit: Initial Considerations: Subject Matter Jurisdiction and Subject Matter Jurisdiction
Flowchart.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 6

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Lack of Personal Jurisdiction

A court also must have personal jurisdiction over the parties. A court may exercise personal jurisdiction over
individuals and entities with enough contacts within the state where the court is located so that the lawsuit does
not offend the due process standard of "traditional notions of fair play and substantial justice" (see Int'l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)).

A court may generally exercise personal jurisdiction over an individual served with the summons and complaint
within the forum state. This is true even if the individual's physical presence is only temporary and unrelated to the
lawsuit (also known as tag jurisdiction) (see Burnham v. Superior Court of California, 495 U.S. 604, 619 (1990)).
However:

• If a plaintiff serves process on an individual other than by hand delivery, it may not be sufficient to establish
personal jurisdiction in this situation (see Harbour Victoria Investment Holding Ltd. v. Chawla, 148 F. Supp.
3d 298, 303 (S.D.N.Y. 2015)).

• Tag jurisdiction may be unavailable for foreign corporations, partnerships, and associations that do not
have sufficient minimum contacts within the state (see Martinez v. Aero Caribbean, 764 F.3d 1062, 1064
(9th Cir. 2014) (serving process on a foreign corporation's officer within the forum state does not create
general personal jurisdiction over the corporation); Pastor Enters. v. GKN Driveline N. Am., Inc., 2020 WL
5366286, at *4 (D.N.J. Sept. 8, 2020); Golden Scorpio Corp. v. Steel Horse Saloon I, 2009 WL 976598, at
*3 & n.4 (D. Ariz. Apr. 9, 2009); C.S.B. Commodities, Inc. v. Urban Trend (HK) Ltd., 626 F. Supp. 2d 837,
849-51 (N.D. Ill. 2009)).

The court may exercise personal jurisdiction over out-of-state defendants who the plaintiff served in another
jurisdiction if either:

• The forum state's rules governing jurisdiction over non-residents (also known as long-arm statutes) are
satisfied.

• The plaintiff is suing the defendant under a federal statute (or the plaintiff's claims arise under federal
law and the defendant is not subject to the jurisdiction of any state) and the national long-arm statute is
satisfied (FRCP 4(k)(2); see Fraser v. Smith, 594 F.3d 842, 848-49 (11th Cir. 2010); but see Noble House,
LLC v. Underwriters at Lloyd's, London, 2021 WL 896219, at *5 (S.D.N.Y. Mar. 3, 2021) (noting that courts
rarely invoke jurisdiction under FRCP 4(k)(2))).

In addition to complying with the relevant long arm statute, for an out-of-state defendant, the exercise of personal
jurisdiction also must satisfy the due process clause of the US Constitution, with either:

• The defendant having continuous and systematic business within the forum state (general jurisdiction) (see
Daimler AG v. Bauman, 134 S.Ct. 746, 761 (2014); Goodyear Dunlop Tires Operations, S.A. v. Brown, 131
S.Ct. 2846, 2851 (2011)).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 7

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• The lawsuit relating to defendant's contacts within the forum state (specific jurisdiction) (see Walden v.
Fiore, 134 S.Ct. 1115, 1122 (2014); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985)).

For more information on establishing personal jurisdiction, see Practice Note, Commencing a Federal Lawsuit:
Initial Considerations: Personal Jurisdiction.

A defendant moving to dismiss because of the court's lack of personal jurisdiction generally bases that motion on
the grounds for establishing jurisdiction and not defective process or service of process. A defendant moving to
dismiss based on defective process or service of process does so under FRCP 12(b)(4) (insufficient process) or
(5) (see Insufficient Process and Service of Process).

A defendant does not submit to the court's jurisdiction by making a motion to dismiss under FRCP 12(b)(2) (see
PaineWebber Inc. v. Chase Manhattan Private Bank (Switzerland), 260 F.3d 453, 461 (5th Cir. 2001); Kemps LLC
v. IPL, Inc., 2020 WL 71275, at *3 (W.D. Mo. Jan 7, 2020)).

Improper Venue

A plaintiff may file a case in a federal judicial district where at least one of the following is true:

• Any defendant resides, if all defendants reside in the state where the district is located.

• A substantial part of the events or omissions giving rise to the claim occurred.

• A substantial part of property that is the subject of the action is situated.

• Any defendant is subject to the court's personal jurisdiction for the action, if there is no district where the
plaintiff may otherwise bring the action.

(28 U.S.C. § 1391(b).)

The general venue statute governs actions brought in federal court based on federal question and diversity
jurisdiction (28 U.S.C. § 1391(a)(1)).

For more information on determining the proper venue for a lawsuit, see Practice Note, Commencing a Federal
Lawsuit: Initial Considerations: Determine the Proper Venue for the Lawsuit.

If the plaintiff has filed suit in an improper venue, a defendant may move to dismiss or transfer the action under 28
U.S.C. §1406(a). If counsel choose to move to dismiss based on improper venue, they must do so in their initial
motion to dismiss or responsive pleading under FRCP 12(b)(3), or else a court will deem it waived (FRCP 12(h)(1)).

On the other hand, counsel may file a motion to transfer at any time based on convenience factors under 28 U.S.C.
§1404(a), if counsel make the motion with reasonable promptness (see Peteet v. Dow Chem. Co., 868 F.2d 1428,
1436 (5th Cir. 1989); Carter v. C.R. England Inc., 2021 WL 669264, at *2 (W.D. La. Feb. 4, 2021)).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Notably, a motion to dismiss for improper venue also is different than a motion to transfer in that, if granted (with
prejudice), a motion to dismiss extinguishes a plaintiff's claims, whereas a motion to transfer simply transfers the
case to another federal court.

For more information on motions to transfer, see Practice Note, Motion to Transfer Venue (Federal).

Insufficient Process and Service of Process

If a plaintiff has improperly served the summons and complaint, or if the process itself is insufficient (for example, not
signed by the clerk or filed in the wrong court), a defendant may move to dismiss under FRCP 12(b)(4) (insufficient
process) or (5) (insufficient service of process).

FRCP 4, district courts' local rules, and state rules (if a state law service method is used) set out the standard for
serving and filing case-initiating documents. For more information on how to properly commence a federal lawsuit,
see Practice Note, Commencing a Federal Lawsuit: Filing and Serving the Complaint.

On an FRCP 12(b)(4) or (5) motion to dismiss, the district court may do any of the following:

• Dismiss the action with or without prejudice.

• Grant discovery if factual issues are involved (see Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446,
455-56 (3d Cir. 2003)).

• Find that the defendant waived these defenses if the defect is technical and the defendant had notice of
the suit (see, for example, Dispensa v. National Conference of Catholic Bishops, 2020 WL 2573013, at *3
(D.N.H. May 21, 2020); Reform Party of the United States v. O'Hara, 2006 WL 1133537, at *3-4 (N.D. Fl.
Mar. 2, 2006)).

Failure to State a Claim on Which Relief Can Be Granted

A plaintiff must adequately allege facts sufficient to establish a cognizable cause of action. If a plaintiff fails to do
so, a defendant may move to dismiss the action under FRCP 12(b)(6).

Although FRCP 8(a) sets out a liberal pleading standard that governs most claims, a plaintiff must plead certain
causes of action, such as fraud or mistake, with particularity (FRCP 9(b)) (see Practice Note: Commencing a
Federal Lawsuit: Drafting the Complaint).

The following are insufficient to state a claim:

• Simple recitals of the elements of a cause of action.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 9

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Conclusory statements (including legal conclusions).

• Alleged facts that only suggest the possibility of misconduct.

(See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).)

In determining the sufficiency of a claim, the court must accept all non-conclusory allegations as true (see Iqbal,
556 U.S. at 679; see also Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825-28 (7th Cir. 2015) (explaining that, in
deciding a motion to dismiss, a court must focus on the sufficiency of the factual allegations and not whether they
are likely to be true)).

A motion to dismiss for failure to state a claim must be limited to the pleadings. If counsel present matters outside
of the pleadings to the court, the court will either:

• Exclude the evidence.

• Convert the motion to a motion for summary judgment.

(FRCP 12(d) and 56; see Goel v. Bunge, Ltd., 820 F.3d 554, 558 (2d Cir. 2016).)

Federal courts are divided about whether a defendant may raise affirmative defenses in an FRCP 12(b)(6) motion
to dismiss. Some have held that a court cannot properly dismiss a complaint based on an affirmative defense
because it is not necessary for a complaint to anticipate defenses (see Craftwood II, Inc. v. Generac Power Sys.,
Inc., 2019 WL 1435011, at *2 (7th Cir. Apr. 1, 2019); Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012);
Laskowski v. Chandler, 2018 WL 827973, at *3-4 (N.D. Ill. Feb. 12, 2018)). Other courts have held that if an
affirmative defense is clear on the face of the complaint, a defendant may move to dismiss for failure to state a
claim (see Fried v. JP Morgan Chase & Co., 850 F.3d 590, 604 (3d Cir. 2017); Herron v. Herron, 255 F.2d 589, 593
(5th Cir. 1958); Huffman v. Linthicum, 2009 WL 243000, at *3 (S.D. Tex. Jan. 29, 2010)).

Counsel should consult controlling precedent in the circuit where they are filing before making an FRCP 12(b)(6)
motion based on an affirmative defense.

If a court finds that the plaintiff has not pled facts sufficient to support its claim for relief, the court will generally
permit the plaintiff to amend its complaint to add facts that will remedy the pleading deficiency (FRCP 15(a)(2);
Foman v. Davis, 371 U.S. 178, 182 (1962); Woldeab v. DeKalb County Bd. of Educ., 885 F.3d 1289, at 1289-90
(11th Cir. 2018); Luce v. Edelstein, 802 F.2d 49, 56-57 (2d Cir. 1986); Hammer v. Peninsula Poultry Equip. Co.,
2013 WL 97398, at *8 (D. Md. Jan. 8, 2013); but see U.S. ex rel. v. Manor Care, Inc., 851 F.3d 293, 308 n.6 (4th
Cir. 2017) (finding the district court was warranted in denying plaintiff leave to amend the complaint because he
failed to file a motion for leave and proposed amended complaint as circuit law required)).

Failure to Join a Necessary Party

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 10

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

A defendant may move to dismiss an action if the plaintiff has failed to join a party that FRCP 19 requires be joined
(FRCP 12(b)(7)).

A plaintiff must join a party who is subject to service of process and whose inclusion in the suit will not deprive the
court of subject matter jurisdiction if either that party's:

• Presence in the action is necessary for the court to grant relief to all existing parties.

• Absence from the action would:

• impair the party from protecting a claimed interest to the subject of the action; or

• leave a party to the action open to multiple or inconsistent obligations.

(FRCP 19(a)(1).)

A court may dismiss a case based on a plaintiff's failure to join a necessary party and reinstate the case once the
plaintiff properly joins the party (see Northern Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1284 (10th Cir. 2012)
(holding that dismissal of the action based on the failure to join an indispensable party is not an adjudication on the
merits and the district court's dismissal should have been without prejudice)). A court also may refuse to dismiss
the case and instead permit the plaintiff to join the necessary party (see Askew v. Sheriff of Cook County, Illinois,
568 F.3d 632, 634 (7th Cir. 2009) (noting that dismissal "is not the preferred outcome" in failure to join cases)).

For more information about joinder of parties, see Practice Note, Required Joinder of Parties Under FRCP 19:
Overview.

Burden
The defendant generally has the burden of establishing the following defenses:

• Failure to state a claim on which relief may be granted (Animal Science Prods., Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011); Total Benefits Planning Agency, Inc. v. Anthem Blue Cross &
Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008); Ojeda, et al. v. Louis Berger Group, Inc., 2021 WL 941875,
at *2 (D.N.J. Mar. 11, 2021)).

• Failure to join a necessary party (Citizen Band Potawatomi Indian Tribe of Oklahoma v. Collier, 17 F.3d
1292, 1293 (10th Cir. 1994); Finsa Portafolios, S.A. de C.V. v. Opengate Capital, LLC, 2020 WL 7862124,
at *4 (C.D. Cal. Aug. 19, 2020)).

The plaintiff has the burden of establishing the court's jurisdiction if a defendant moves on the following grounds:

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 11

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Lack of personal jurisdiction (see Penachio v. Benedict, 461 F. App'x 4, 5 (2d Cir. 2012); Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)).

• Lack of subject matter jurisdiction (see Paroski v. Ericsson Inc., 2012 WL 6021184, at *1 (N.D. Tex. Sept. 6,
2012); Fed. Trade Comm'n v. Ameridebt, Inc., 343 F. Supp. 2d 451, 459 (D. Md. 2004)).

• Insufficient service of process (see Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir. 2010); Lisson v.
ING Groep NV, 262 F. App'x 567, 569 (5th Cir. 2007); Sutter v. Dibello, 2021 WL 930459, at *7 (E.D.N.Y.
Mar. 10, 2021)).

While some courts have held that when a defendant challenges process, the burden is on the plaintiff to make a
prima facie showing of jurisdiction, other courts have explicitly stated that where the defects in process are minor, a
court will only dismiss the complaint where the defendant has proven that it was prejudiced (see Warfield v. Byron,
137 F. App'x 651, 655, 657 n.10 (5th Cir. 2005); Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897, 900-01 (11th
Cir. 1990); King v. Marcy, 2019 WL 691782, at *4 (S.D. Ga. Feb. 19, 2019); Broadway v. Adidas Am., Inc., 2008
WL 2705566, at *4 (E.D. Ark. July 10, 2008); In re Ski Train Fire, 2007 WL 737491, at *1 (S.D.N.Y. Mar. 9, 2007)).

Courts disagree about who bears the burden of establishing venue where a defendant has moved to dismiss under
FRCP 12(b)(3), with some holding that the defendant bears the burden of establishing improper venue (see, for
example, Bockman v. First Am. Mktg. Corp., 459 F. App'x 157, 160 (3d Cir. 2012)) and many others holding that
the burden is on the plaintiff to show that venue is proper (see Piedmont Label Co. v. Sun Garden Packing Co.,
598 F.2d 491, 496 (9th Cir. 1979); W. Org. of Resource Councils v. U.S. Bureau of Land Mgmt., 2021 WL 718857,
at *3 (D. Mont. Feb. 24, 2021); Tatro v. Sterling Jewelers, Inc., 2019 WL 1149906, at *6 (S.D. Cal. Mar. 12, 2019);
Azal Corp. v. Cinemacar II Inc., 2014 WL 856274, at *2 (S.D.N.Y. Mar. 5, 2014); Whiting-Turner Contracting Co. v.
Liberty Mut. Ins. Co., 912 F. Supp. 2d 321, 331-32 (D. Md. 2012)).

Waiver
A defendant may only make one motion to dismiss, asserting all defenses (other than those FRCP 8(c) sets out)
(see Morrison v. Mahoney, 399 F.3d 1042, 1046 (9th Cir. 2005) that were available when it made the motion (FRCP
12(g)).

Defenses a Defendant Can Waive

The defendant waives the following defenses if it fails to raise them in its motion to dismiss (or first responsive
pleading if it does not make a motion):

• Lack of personal jurisdiction.

• Improper venue.

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 12

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Insufficient process.

• Insufficient service of process.

(FRCP 12(h)(1).)

A defendant is precluded from raising these defenses in response to an amended complaint if they were available,
but not asserted in the motion to dismiss the original complaint (see, for example, Krinsk v. SunTrust Banks, Inc.,
654 F.3d 1194, 1203 (11th Cir. 2011); Rowley v. McMillan, 502 F.2d 1326, 1332-33 (4th Cir. 1974)).

Defenses a Defendant Cannot Waive

Even if the defendant fails to raise them in a motion to dismiss (or responsive pleading if it does not make a motion),
it does not waive the fundamental defenses of failure to:

• State a claim on which relief can be granted.

• Join an indispensable party.

• State a legal defense to a claim.

(FRCP 12(h)(2).)

The defendant may raise these defenses at any time, including at trial (FRCP 12(h)(2)).

Lack of subject matter jurisdiction is another defense that a defendant cannot waive. The court must consider this
issue on its own even if no party raises it (FRCP 12(h)(3)).

FRCP 12(h) only applies to defenses in FRCP 12 and not affirmative defenses FRCP 8(c) sets out.

Possible Motion to Dismiss Outcomes

Unless the court defers its decision until after trial, it must decide a motion to dismiss under FRCP 12(b)(1)-(7)
before trial (FRCP 12(i)).

The court may:

• Grant the motion in its entirety. In contrast to other types of dismissal motions (lack of jurisdiction,
improper venue, or failure to join a party), if a court grants a motion to dismiss under FRCP 12(b)(6) with
prejudice, it is a judgment on the merits and res judicata applies (FRCP 41(b); see, for example, Malles v.
Governor of Pa., 502 F. App'x 111, 112 (3d Cir. 2012)).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 13

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

• Dismiss some of the plaintiff's claims. This may happen if:

• the defendant only moved to dismiss some but not all of the plaintiff's claims; or

• the court grants the motion in part and denies it in part.

• Deny the motion.

Even if a court dismisses some or all of the plaintiff's claims, it may allow the plaintiff leave to replead (FRCP 15(a)
(2); see Loreley Fin. No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160,188-89 (2d Cir. 2015) (noting the liberal
standard FRCP 15 sets out and holding that the district court exceeded its discretion by denying the plaintiffs leave
to amend their complaint); but see Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 130-31 (D.C. Cir. 2012) (affirming
dismissal with prejudice due to plaintiff's failure to file a motion for leave and proposed amended complaint)).

A defendant must answer the complaint within 14 days of receiving notice of the court's order on the defendant's
motion to dismiss if the court either:

• Denied the motion.

• Granted the motion as to only some of the plaintiff's claims.

• Granted the motion but the defendant only moved to dismiss some of the plaintiff's claims.

(FRCP 12(a)(4)(A).)

Other FRCP 12 Motions that a Defendant May Make in Response to

a Complaint
A defendant may join a motion to dismiss with any other pre-answer motion FRCP 12 permits (FRCP 12(g)(1)),
including a motion:

• For a more definite statement (FRCP 12(e)).

• To strike (FRCP 12(f)).

Courts generally disfavor motions to strike and motions for a more definite statement (see Ostrolenk Faber LLP v.
Unigene Labs., Inc., 2012 WL 3114742, at *3 n.2 (S.D.N.Y. Aug. 1, 2012) (stating that a motion for a more definite
statement should be granted only where the complaint is unintelligible); John J. Kirlin, Inc. v. Conopco, Inc., 1995
WL 15468, at *3 (S.D.N.Y. Jan. 17, 1995) (same); Doe v. Cin-Lan, Inc., 2009 WL 1508367, at *1 (E.D. Mich. May
29, 2009) (stating that courts disfavor motions to strike because they propose a drastic remedy)).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 14

 Durrani, Ayesha 11/22/2021
For Educational Use Only

Motion to Dismiss: Overview (Federal), Practical Law Practice Note Overview 8-523-9648

Motion for a More Definite Statement

A defendant may make a motion for a more definite statement where:

• A responsive pleading is permitted.

• The complaint is so vague and ambiguous that the defendant cannot formulate a response.

(FRCP 12(e).)

The defendant must make this motion before filing a responsive pleading. An order for a more definite statement
generally requires the plaintiff to provide more detailed allegations so the defendant can reasonably respond (see
Certain Underwriters at Lloyd's of London v. MSC Mediterranean Shipping Co. S.A., 2020 WL 1157862, at *2
(S.D.N.Y. Mar. 10, 2020); Precise-Mktg. Corp. v. Simpson Paper Co., 1996 WL 285364, at *2 (S.D.N.Y. May 30,
1996)).

For more information on motions for a more definite statement, see Practice Note, Motion for a More Definite
Statement Under FRCP 12(e).

Motion to Strike

The defendant may make a motion to strike material from a complaint that is:

• Redundant.

• Immaterial.

• Impertinent.

• Scandalous.

• About relief that is unavailable to the plaintiff.

(FRCP 12(f); Gilbee v. RJW Transp., Inc., 2010 WL 4974863, at *2 (E.D. Mo. Nov. 24, 2010).)

A defendant must make a motion to strike before an answer or other responsive pleading is due, or if a responsive
pleading is not permitted, within 21 days of being served with the complaint (FRCP 12(f)(2)).

For more information on motions to strike, see Practice Note, Motion to Strike FRCP 12(f).

© 2021 Thomson Reuters. No claim to original U.S. Government Works. 15