Also known as: FRCP 12 · Federal Rule of Civil Procedure 12 · Rule 12 · Rule 12(b)
Written by attorneys — see sources below.
A federal procedural rule that consolidates available defenses and objections to a complaint. The rule permits certain threshold challenges to be raised by pre-answer motion and requires consolidation of waivable defenses in the first such motion. Failure to raise specified defenses in the initial motion or responsive pleading results in waiver.
Fabian Flynn served a complaint on Fairfield Bank. The bank filed a Rule 12(b)(6) motion. Flynn served an amended complaint twenty days later. The amendment was permitted as a matter of course because it occurred within twenty-one days after service of the motion.
Farid Farahani sued Foster Forge for breach of contract. Foster Forge moved to dismiss under Rule 12(b)(6) and attached an affidavit containing facts outside the complaint. The court considered the affidavit without excluding it. The motion was converted to one for summary judgment under Rule 56.
Floyd Franklin sued Ferrum Metals in federal court. Ferrum Metals filed a pre-answer motion under Rule 12(b)(6) but omitted any challenge to personal jurisdiction. Ferrum Metals later attempted to raise lack of personal jurisdiction in its answer. The defense was waived because it was available and omitted from the first motion.
Felicia Fuentes sued Fisher Foods alleging an antitrust conspiracy based solely on parallel pricing behavior. Fisher Foods moved to dismiss under Rule 12(b)(6). The complaint contained no facts suggesting an actual agreement. The motion was granted because the allegations were consistent with lawful independent conduct.
In 1984 the divestiture of AT&T's local telephone business created seven regional service monopolies known as Regional Bell Operating Companies or Incumbent Local Exchange Carriers. More than a decade later Congress enacted the Telecommunications Act of 1996 which restructured local telephone markets and imposed duties on the ILECs to facilitate entry by competitive local exchange carriers through resale of services at wholesale rates, leasing of unbundled network elements, or interconnection of facilities. William Twombly and Lawrence Marcus filed suit in the United States District Court for the Southern District of New York on behalf of a putative class of all subscribers of local telephone and high-speed internet services from February 8, 1996 to the present. They named as defendants four consolidated ILECs: BellSouth Corporation, Qwest Communications International Inc., SBC Communications Inc., and Verizon Communications Inc. The complaint alleged that these ILECs conspired to restrain trade by engaging in parallel conduct to inhibit CLECs, including unfair agreements for network access, inferior connections, overcharging, and billing practices designed to sabotage CLEC customer relations. The complaint further alleged that the ILECs agreed not to compete against one another in their respective territories. This agreement was inferred from their common failure to pursue business opportunities in contiguous markets and from a statement by Qwest CEO Richard Notebaert that competing in another ILEC's territory might be a good way to turn a quick dollar but that does not make it right. The complaint asserted that in light of the absence of meaningful competition among the ILECs and their parallel course of conduct the defendants had entered into a contract combination or conspiracy to prevent competitive entry and to allocate customers and markets. The district court dismissed the complaint for failure to state a claim. It concluded that the alleged parallel behavior was fully explained by each ILEC's independent interest in defending its own territory and that the complaint did not allege facts suggesting the decision to refrain from competing elsewhere was contrary to the ILECs' apparent economic interests. The Court of Appeals for the Second Circuit reversed, holding that plus factors need not be pleaded and that allegations of parallel conduct suffice if they leave open the possibility of collusion. The Supreme Court granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct.
View caseFelix Franco sued Fairfield Bank alleging violations of a federal environmental statute. Fairfield Bank moved to dismiss before answering, asserting lack of standing. The court examined the standing allegations at the outset. The motion was granted because the plaintiff failed to satisfy the constitutional requirements for standing.
Citizens for a Better Environment, an association of individuals interested in environmental protection, sued Steel Company, a small manufacturing company located in Chicago, alleging that Steel Company had failed since 1988 to complete and submit the annual hazardous-chemical inventory forms and toxic-chemical release forms required by the Emergency Planning and Community Right-To-Know Act of 1986. The forms must list the name and location of the facility, the name and quantity of each specified chemical on hand, the waste-disposal method employed, and the annual quantity of toxic chemicals released into each environmental medium, with inventory forms due each March 1 and release forms due each July 1. In 1995 the association sent the required 60-day notice to Steel Company, the EPA Administrator, and Illinois authorities, accurately alleging that Steel Company had never filed the required forms. Upon receiving the notice, Steel Company filed all of the overdue forms with the appropriate agencies. The EPA took no enforcement action, and after the waiting period expired the association filed its complaint in federal district court. The complaint, brought on behalf of the association and its members, sought a declaratory judgment that Steel Company had violated EPCRA, authorization for periodic inspections of Steel Company's facility and records at Steel Company's expense, an order compelling Steel Company to provide the association with copies of all compliance reports submitted to the EPA, civil penalties of $25,000 per day for each violation, and an award of the association's investigation and litigation costs including reasonable attorney and expert witness fees. The district court agreed with Steel Company on both points and dismissed the complaint. The United States Court of Appeals for the Seventh Circuit reversed, and the Supreme Court granted certiorari to resolve a conflict with the Sixth Circuit's decision in a factually indistinguishable case.
View caseFelicity French sued Foster Forge under the securities laws. The complaint alleged misleading statements but contained no facts supporting a strong inference that the defendants acted with scienter. Foster Forge moved to dismiss under Rule 12(b)(6). The motion was granted because the pleadings failed to meet the heightened standard for inferring fraudulent intent.
Petitioner Tellabs, Inc. manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents purchased Tellabs stock between December 11, 2000, and June 19, 2001. The shareholders alleged that Notebaert made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow when in fact demand for that product was waning. Notebaert made statements indicating that the TITAN 6500 was available for delivery and that demand for that product was strong and growing when in truth the product was not ready for delivery and demand was weak. Notebaert falsely represented Tellabs' financial results for the fourth quarter of 2000 and, in connection with those results, condoned the practice of channel stuffing under which Tellabs flooded its customers with unwanted products. Notebaert made a series of overstated revenue projections when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. The first public glimmer that business was not so healthy came in March 2001 when Tellabs modestly reduced its first quarter sales projections. On June 19, 2001, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Simultaneously, the company substantially lowered its revenue projections for the second quarter of 2001. The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. On December 3, 2002, the shareholders filed a class action in the District Court for the Northern District of Illinois. Their complaint stated, inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of section 10(b) of the Securities Exchange Act of 1934. Tellabs moved to dismiss the complaint on the ground that the shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed and therefore dismissed the complaint without prejudice. The shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific allegations concerning Notebaert's mental state. The District Court again dismissed, this time with prejudice. The Court of Appeals for the Seventh Circuit reversed in relevant part. Like the District Court, the Court of Appeals found that the shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Unlike the District Court, however, the Seventh Circuit concluded that the shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. The Supreme Court granted certiorari to resolve the disagreement among the Circuits on whether and to what extent a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a strong inference of scienter.
View caseA defendant must raise lack of personal jurisdiction in the first pre-answer motion under Rule 12 or in the answer if no such motion is filed. Omitting the defense from an initial Rule 12 motion waives it under Rule 12(h)(1).
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The motion must be converted to one for summary judgment under Rule 56 if the court considers the outside materials and does not exclude them. All parties must receive a reasonable opportunity to present pertinent material.
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No. Defects in the form or content of the summons render process insufficient under Rule 12(b)(4) even if the defendant received actual notice and suffered no prejudice. Formal compliance with Rule 4(a) is required.
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Lack of subject matter jurisdiction may be raised by pre-answer motion and is never waived. The court must dismiss whenever it determines jurisdiction is lacking, even after trial.
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A complaint must contain enough factual matter to state a plausible claim. Allegations that are merely consistent with lawful conduct do not survive a Rule 12(b)(6) motion under the standard applied in Twombly.
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