Motions Practice
Key motions for the MBE and MEE
7Sage Hot Topics
Civil Procedure

Dispositive pre-trial motions
EXAM TIP: Waiver of 12(b) defenses

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.

Rule 12(b) motions to dismiss
Filed before the answer to target procedural flaws


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.

EXAM TIP: Dismissals without prejudice

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.
Motion for judgment on the pleadings (Rule 12(c))

Like 12(b)(6) but filed once the pleadings are closed.

Summary judgment motions (Rule 56)

Tests the sufficiency of the evidence to determine if the claims should proceed to trial.

No genuine issues of material fact: The moving party must show it is entitled to judgment as a matter of law because there are no genuine issues of material fact for a jury to decide.
Lack of evidence sufficient: The moving party does not have to submit its own evidence. It just has to show that the nonmoving party can’t create a genuine issue as to at least one element.
Burden-shifting: If the moving party succeeds, the burden of persuasion shifts to the nonmoving party to show a reasonable jury could find in its favor.
Evidence considered: Both parties may submit deposition testimony, witness affidavits or declarations, dis- covery responses, and documents outside the pleadings.
Requirements for affidavits and declarations
Based on personal knowledge
State facts admissible at trial
State the declarant is competent to testify to these facts
Inferences: The judge cannot weigh the evidence. All factual inferences must favor the nonmoving party.

If denied: An order denying summary judgment is interlocutory, and there’s no right to immediate appeal.