Motions Practice
Key motions for the MBE and MEE
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7Sage Hot Topics Civil Procedure |
Dispositive pre-trial motions
PJ, venue, insufficient process, and insufficient service are waived if not asserted in a 12(b) motion or the answer.
If waived, they can’t be asserted later in the lawsuit, and they can’t be grounds for appeal.
Grounds
Lack of subject matter jurisdiction (SMJ)
Lack of personal jurisdiction (PJ)
Improper venue
Insufficient process Insufficient service of process
Failure to state a claim on which relief may be granted
Failure to join a necessary party under Rule 19
One bite at the apple: You can only file one 12(b) motion, so include all defenses.
Failure to state a claim under 12(b)(6): Tests the sufficiency of the complaint. If all allegations are true, do they state a viable legal claim?
Common arguments on the MBE: Twombly/Iqbal plausibility standard and special pleading requirements for fraud and conditions precedent under Rule 9.
Evidence permitted: The court will only consider documents attached to the complaint, public records, and facts subject to judicial notice. Any other evidence converts a 12(b)(6) to a motion for summary judgment.
All other 12(b) motions: Allegations are not assumed to be true. Both parties can submit evidence, and the court may allow limited discovery.
12(b) dismissals for lack of PJ, improper venue, and failure to join are usually without prejudice. They have no preclusive effect, so P can refile.
Like 12(b)(6) but filed once the pleadings are closed.
Tests the sufficiency of the evidence to determine if the claims should proceed to trial.
State facts admissible at trial
State the declarant is competent to testify to these facts
If denied: An order denying summary judgment is interlocutory, and there’s no right to immediate appeal.