Concept

Choosing the Right Motion

Motions addressed to the face of the pleadings

Choosing the Right Motion

A party chooses among the pleading-stage motions by asking what record its argument needs. The record for a Rule 12(b)(6) motion is the complaint's factual allegations, presumed true. The record for a summary judgment motion is every supporting and opposing material that would be admissible at trial.¹ Rule 12(c) sits between them, reading the complaint, the answer, and any reply, while Rules 12(e) and 12(f) address the form of a single pleading. The question to put to any fact pattern is therefore where the winning fact is written: in the complaint, in the complaint and answer together, or only in evidence.

Four devices cover the territory:

Rule 12(b)(6) asks whether the complaint, with its allegations taken as true, fails to state a claim upon which relief can be granted. Where the law does not recognize the claim as a wrong entitling the plaintiff to compensation, the court can short-circuit the case by dismissing it at the outset.²
Rule 12(c) becomes available once the pleadings are closed, provided the motion comes early enough not to delay trial. The court decides it on the complaint and the answer, plus the reply if there is one.³
Rule 56 asks whether any genuine dispute of material fact remains and whether the movant is entitled to judgment as a matter of law on the undisputed facts.⁴
Rules 12(e) and 12(f) target a pleading's form: Rule 12(e) a pleading so vague or ambiguous that the party cannot reasonably prepare a response, and Rule 12(f) an insufficient defense or redundant, immaterial, impertinent, or scandalous matter.⁵

The first three share a premise. Each asks the court to decide a question of law on presumptively undisputed facts.⁶ They differ only in how much of the case the court may look at. That difference yields the working rule: use the earliest motion whose record contains the whole argument. An argument that rests on the complaint alone can end the case at the outset, before the parties spend anything on proof.⁷ An argument that needs more than the complaint holds cannot be forced into a pleading motion, because stretching a motion past its record invites reversal. The minutes saved by an early dismissal turn into wasted hours when an appellate court feels constrained to reverse it, and that is one reason federal courts view motions to dismiss with disfavor.⁸ The disfavor has a history behind it. Under the older pleading regimes, a failure to comply with the pleading rules ended the action with no leave to replead, and the pleadings screened out many cases before anyone reached the merits.⁹ The modern premise is the reverse: a case should be tried on the proofs rather than the pleadings.¹⁰

Rule 12(c) earns its place when the answer contributes something the complaint lacks. Because the answer joins the record, the court can read a defense the answer pleads together with the facts the complaint alleges. A complaint whose dates show a claim filed late, read with an answer that pleads the statute of limitations, can resolve the case without a single exhibit.¹¹ What neither pleading motion can do is settle a fact the parties actually dispute. The premise of both is presumptively undisputed facts, and a pleaded assertion met by a pleaded denial is a disagreement the pleadings cannot referee.¹² A claim that turns on that disagreement needs an evidentiary record.

Rules 12(e) and 12(f) are housekeeping tools, and they say nothing about who should win. A motion for a more definite statement must be made before the movant files a responsive pleading, and it must point out the defects complained of and the details desired.¹³ A motion to strike must come before the movant responds to the pleading or, if no response is allowed, within 21 days after service. The court may also strike on its own, without any motion.¹⁴ The remedy in each case is repair of the paper. Even so, a Rule 12(e) order has teeth: if the pleader does not obey it within 14 days after notice, or within the time the court sets, the court may strike the pleading or issue any other appropriate order.¹⁵ The three defects map onto three devices. A legal defect belongs to Rule 12(b)(6), a clarity defect to Rule 12(e), and a defect of insufficient defense or clutter to Rule 12(f). Dismissing a claim the law does not recognize is what Rule 12(b)(6) is designed to do.¹⁶

Rule 12(d) links the ladder together. If matters outside the pleadings are presented 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 all parties must have a reasonable opportunity to present all the material pertinent to it.¹⁷ The movant's own presentation of material beyond the complaint is enough to trigger conversion.¹⁸ The rule names only Rule 12(b)(6) and Rule 12(c) motions, so it does not reach the housekeeping motions.¹⁹

The hinge exists because a pleading motion is fair only while no evidence is in play. The court acts on what the papers say and presumes the pleaded facts true. Once proof is in the court's hands, the question becomes whether a genuine dispute of material fact remains. The court answers it without weighing the evidence or assessing credibility, and it resolves doubts in favor of the party opposing the motion.²⁰ The burden runs in a set order. The movant must first show the absence of any genuine dispute. The opposing party must then introduce outside evidence to rebut that showing, because the pleadings alone will not carry it through summary judgment. If it introduces none, the movant's evidence is taken as true, and in most cases summary judgment follows.²¹

Hypothetical Illustration

Marchetti sues Halvorsen for $30,000 on a promissory note, alleging the loan and nonpayment. Halvorsen holds a signed receipt showing the note was paid in full. A Rule 12(b)(6) motion cannot use the receipt, because the court takes the complaint's allegation of nonpayment as true and the receipt lies outside the complaint. A Rule 12(c) motion after the answer pleads payment fares no better, because the pleadings then contain an allegation of nonpayment and a defense of payment, which is a disagreement about what happened. The receipt belongs in a Rule 56 motion, where it counts as evidence. Marchetti then cannot rest on his complaint and must answer with evidence of his own, and if he offers none, Halvorsen's showing is taken as true.²² If Halvorsen attaches the receipt to the motion to dismiss anyway and the judge relies on it, Rule 12(d) turns the motion into a Rule 56 motion, and Marchetti is entitled to a reasonable opportunity to respond.²³

A movant who knows its winning fact is evidence should therefore wait for a record and move under Rule 56, instead of attaching proof to a pleading motion and leaving conversion to the judge. Summary judgment has its own reading. Here it matters as the place where pleading motions end and proof-based motions begin.

Exam Analysis Steps

Because the right motion depends on where the winning fact is written and how far the case has progressed, a fact pattern can be sorted in order:

Identify the defect or fact the movant relies on, and ask whether it appears in the complaint alone, in the complaint and answer together, or only in evidence.
If the defect is a legal one visible on the face of the complaint, choose Rule 12(b)(6).
If the pleadings are closed and the answer's admissions or defenses supply the missing piece, choose Rule 12(c), and expect denial if the pleadings leave a material fact in dispute.
If the outcome depends on a fact the pleadings dispute, choose Rule 56 once an evidentiary record exists, and attach evidence to a pleading motion only if conversion is acceptable.
If the pleading is merely unclear, or contains an insufficient defense or clutter, choose Rule 12(e) or Rule 12(f) within the time allowed, and expect repair of the pleading and not a decision on the merits.
If the court accepts outside material on a Rule 12(b)(6) or 12(c) motion, treat the motion as one for summary judgment and ask whether all parties had a reasonable opportunity to respond.

The usual exam error occurs at the first step, when a party that disputes the truth of an allegation moves under Rule 12(b)(6). An argument that the plaintiff is wrong about what happened can sound like an argument that the plaintiff has failed to state a claim. It is in fact a dispute about the facts, and a dispute about facts is resolved on evidence.

Choosing the Right Motion

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