Testing the Pleadings Alone

Motions on the Pleadings

Testing the Pleadings Alone

Two motions in Rule 12 ask the court to rule by reading the pleadings and receiving no proof. Rule 12(b)(6) authorizes the first, a motion to dismiss for "failure to state a claim upon which relief can be granted."¹ Rule 12(c) authorizes the second: after the pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings.² A Rule 12(b)(6) motion asks the court to decide a question of law on facts that are presumptively undisputed, and a Rule 12(c) motion asks for the same kind of decision on a slightly larger set of papers.³

The papers differ, and that difference defines each motion. On a Rule 12(b)(6) motion, the court decides strictly on the factual allegations in the complaint and presumes them true for purposes of the motion. On a Rule 12(c) motion, the record is the complaint and the answer, plus the reply if there is one.⁴ Lawyers call this limit the face of the pleadings, or the four corners of the complaint. It confines the facts the court may consider and leaves the law to the court. The motion poses a purely legal question: whether, if the plaintiff proves the allegations, the complaint establishes a cause of action entitling the plaintiff to relief.⁵

The court assumes the pleaded facts are true because these motions test the law, not the evidence. The movant argues that even if the facts are proved, governing substantive law grants no relief, so whether the allegations are true cannot change the result.⁶ The generosity of the assumption follows from the stakes. Dismissal is a drastic measure: the plaintiff never reaches a jury and never gathers, through discovery, the evidence that might show a legally cognizable injury. Courts therefore give the plaintiff every benefit of the doubt, and they do not consider how likely the plaintiff is to prove the allegations. They assume the plaintiff will.⁷

That motion succeeds because it poses only a legal question, and the facts alleged, even if proved, do not make out a cause of action. A different kind of complaint presents the opposite problem.

The pleadings in the second scene frame a dispute without resolving it, so a motion addressed to their face cannot decide who is right. Deciding that takes evidence, and the pretrial device that tests evidence is summary judgment. What separates the two scenes is whether the answer to the legal question depends on whose version of events is correct. For the shopper it does not. For the cyclist it does.

The motion has a long ancestry. Under common-law and code pleading, a demurrer or equivalent motion was decided solely on the face of the pleading. The attacker could not "go behind the pleading" to show that it had no basis in fact, and so-called speaking demurrers were not allowed. The system assumed that pleadings were made in good faith, on evidence that could be presented at trial, so a challenge to the truth of a legally sufficient pleading required a trial.⁸ The general demurrer has disappeared from federal practice, but some elements persist. Rule 12(b)(6), like its common-law predecessor and its code equivalents, assumes for purposes of the motion that all the alleged facts are true.⁹

Older pleading practice was also unforgiving. A party who failed to comply with the pleading rules faced dismissal with no leave to replead, which made pleading perilous and let the pleadings screen out many cases before they went forward.¹⁰ Modern practice is gentler. Leave to amend is routine when the complaint merely lacks a factual allegation corresponding to an element of the claim, because the flaw may be a pleading oversight that amendment can cure rather than a sign that the facts do not exist. Courts differ on whether the plaintiff has an absolute right to amend after dismissal, but the general rule is to allow amendment liberally.¹¹

The old rule also left a gap. Some jurisdictions tried to reach the facts behind a pleading by claiming an inherent power to strike "sham" pleadings, but no standard separated sham from genuine. It was unclear whether a pleading was a sham only when filed in bad faith or also when overwhelming evidence refuted it.¹² The Rule 12 motions in this chapter avoid that problem by staying on the legal side of the line. Testing the facts belongs to summary judgment.

Summary judgment sharpens the contrast. It also asks for a decision as a matter of law, but it decides on the record of facts in all the supporting and opposing materials that would be admissible at trial, while the Rule 12(b)(6) motion decides on the complaint alone.¹³ That difference changes what the opposing party must do. Once the movant's papers show that no genuine dispute of material fact exists, the burden shifts, and the opposing party cannot survive on the pleadings alone. It must introduce outside evidence rebutting the movant's showing. If it introduces none, the movant's evidence is taken as true, and summary judgment usually follows.¹⁴

The boundary between the two records can move. If a party presents matters outside the pleadings on a Rule 12(b)(6) or 12(c) motion and the court does not exclude them, the motion must be treated as one for summary judgment under Rule 56, and every party must have a reasonable opportunity to present all the pertinent material.¹⁵ A later section takes up what triggers conversion and what the court must do when it happens.

Rule 12 gives each kind of defect its own motion. A legal defect, where the facts alleged would not entitle the pleader to relief, goes to Rule 12(b)(6). A clarity defect, where a pleading is so vague or ambiguous that the opposing party cannot reasonably prepare a response, goes to a Rule 12(e) motion for a more definite statement, made before the responsive pleading is filed.¹⁶ A clutter defect, where a pleading contains an insufficient defense or redundant, immaterial, impertinent, or scandalous matter, goes to a Rule 12(f) motion to strike.¹⁷ The division matters because the motions aim at different targets. Rule 12(b)(6) attacks the legal merit of the claim, while the other two attack a pleading's form and content.