Litigation in Federal Court
Motion to Dismiss
General Dismissal Standard
FRCP 12(b): 7 ways for a defendant to dismiss a case before filing an answer.
[1] lack of subject matter jurisdiction.
[2] lack of personal jurisdiction.
[3] improper venue.
[4] insufficient process (technical issues).
[5] insufficient service of process.
[6] failure to state a claim upon which relief can be granted (same as demur)
[7] failure to join a party under FRCP 19.
Other Rule 12 Motions: things a defendant can do early in a case.
[c] Motion for Judgement on the Pleadings (aka, Motion to Dismiss after Answer); if you move to dismiss before filing an answer, use 12(b)(6); if after, use 12(c).
[d] Adding some evidence before discovery converts to a different motion.
[e] Motion for a More Definite Statement
[f] Motion to Strike
Amending Pleadings
FRCP 15(a): Amendments Before Trial
(1) Amending as a Matter of Course. A party may amend its pleading...
(A) 21 days after service, or
(B) 21 days after Defendant’s Answer, or 21 days after service of a motion under Rule 12(b), (e), or (f).
(2) Other Amendments. In all other cases, a party may amend its pleading only with…
[1] the opposing party’s written consent, or
[2] the court’s leave, which should only be given when justice so requires.