Summary. A motion to dismiss is the first real fight in most federal cases, and it is decided on a record consisting of exactly one document. This guide explains how Rule 12 actually works: the seven enumerated defenses, the strict consolidation and waiver rules of Rule 12(g) and 12(h) that destroy more defenses than any judge ever does, and the sequencing questions courts face when jurisdiction, venue, and merits arguments arrive together. It covers the plausibility standard of Twombly and Iqbal in operational terms, the limits the Supreme Court reaffirmed in Erickson and Johnson v. City of Shelby, and the heightened pleading regimes of Rule 9(b) and the securities laws. It explains what a court may consider without converting the motion to summary judgment, the doctrines of incorporation by reference and judicial notice and how they are abused, and the standards for facial and factual attacks under Rule 12(b)(1). It then turns to strategy: when a motion is worth filing, when it merely educates the plaintiff, how to use Rules 12(e) and 12(f), how leave to amend works under Foman v. Davis, and how to write an opposition that survives. It closes with drafting checklists, a worked example, an FAQ, and related reading.

Here is a thing that surprises non-lawyers: at the beginning of a federal lawsuit, the court assumes everything the plaintiff wrote is true. Not "gives it the benefit of the doubt." Assumes it. If the complaint says the defendant's chief executive personally shredded the contract on live television, the judge, for purposes of the motion, takes that as fact.

And a great many complaints still get dismissed.

That is because a motion to dismiss asks a different question than "is this true?" It asks whether, assuming the facts are true, the plaintiff has stated a claim the law recognizes, in a court that has power to hear it, against a defendant properly brought before it. Those are legal questions, and they are decided on the pleadings.

This guide explains how to win those questions, and, just as importantly, when not to try.

The short answer

Rule 12(b) lists seven defenses that may be raised by motion before pleading:

  1. 12(b)(1) lack of subject matter jurisdiction
  2. 12(b)(2) lack of personal jurisdiction
  3. 12(b)(3) improper venue
  4. 12(b)(4) insufficient process
  5. 12(b)(5) insufficient service of process
  6. 12(b)(6) failure to state a claim upon which relief can be granted
  7. 12(b)(7) failure to join a party under Rule 19

Two rules govern everything else:

  • Rule 12(g)(2): a party that makes a Rule 12 motion must not make another motion raising a defense or objection that was available but omitted.
  • Rule 12(h)(1): defenses 2 through 5 (personal jurisdiction, venue, process, service) are waived if omitted from a Rule 12 motion or not included in a responsive pleading. Defense 6 (failure to state a claim) and 7 (failure to join) may be raised later, through trial. Defense 1 (subject matter jurisdiction) can never be waived and must be raised by the court sua sponte at any time. Rule 12(h)(3).

The operational rule: put every available Rule 12 defense in the first motion. More defenses are lost to Rule 12(g)/(h) than to any judicial ruling.

Part I: Rule 12(b)(6) and the plausibility standard

What changed in 2007

For fifty years, the governing formulation came from Conley v. Gibson, 355 U.S. 41, 45-46 (1957): a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." That is an extraordinarily forgiving standard, and courts applied it that way.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), retired it. The Court held that a complaint must contain "enough facts to state a claim to relief that is plausible on its face," and that "[f]actual allegations must be enough to raise a right to relief above the speculative level." In an antitrust case, allegations of parallel conduct by telecommunications carriers, without more, were "just as much in line with a wide swath of rational and competitive business strategy" as with conspiracy. The famous sentence: Conley's no-set-of-facts language "has earned its retirement."

Ashcroft v. Iqbal, 556 U.S. 662 (2009), confirmed Twombly applies to all civil cases, not just antitrust, and supplied the two-step method courts now use.

The two-step method

Step one: separate the conclusions from the facts. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Set the conclusions aside; they get no presumption of truth.

Step two: ask whether the remaining factual allegations plausibly give rise to an entitlement to relief. This is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Plausibility is "not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Where the facts are "merely consistent with" liability, the complaint "stops short of the line between possibility and plausibility."

What plausibility is not

Three limits get forgotten, and plaintiffs should press them.

It is not a probability requirement. Iqbal says so expressly.

It does not require detailed factual allegations. Erickson v. Pardus, 551 U.S. 89 (2007), decided two weeks after Twombly, reversed a dismissal of a pro se prisoner's Eighth Amendment claim, reiterating that Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief."

It does not require pleading legal theories or elements. Johnson v. City of Shelby, 574 U.S. 10 (2014), reversed per curiam a dismissal for failure to invoke 42 U.S.C. § 1983 by name, holding that federal pleading rules "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." Federal practice is notice pleading of facts, not code pleading of theories.

Nor does it override statutory or Supreme Court holdings about specific claims. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), held that an employment discrimination complaint need not plead a prima facie case under McDonnell Douglas; Twombly expressly declined to overrule it.

How this plays out in practice

The honest description is that plausibility gives district judges discretion they did not have under Conley, and different judges use it differently. Complaints that fail most often share features:

  • Information-asymmetry claims where the plaintiff cannot know the internal facts without discovery (antitrust conspiracy, fraud on internal processes, discriminatory intent).
  • Group pleading that lumps multiple defendants together as "Defendants" without saying who did what.
  • Element recitation without supporting facts.
  • Alternative-explanation problems where innocent explanations are at least as plausible as the alleged wrongdoing.

Complaints that survive tend to plead who, what, when, where, with documents attached, and to address the obvious innocent explanation head-on.

Part II: Heightened pleading

Rule 9(b): fraud and mistake

"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." Fed. R. Civ. P. 9(b).

Courts describe the requirement as the "who, what, when, where, and how" of the fraud: the identity of the speaker, the content of the false statement, the time and place it was made, and why it was false.

Two frequently litigated extensions:

  • Rule 9(b) applies to claims "sounding in" fraud, even if not labeled fraud: certain consumer protection claims, negligent misrepresentation in many circuits, and civil RICO predicated on mail or wire fraud.
  • Relaxation for information within the defendant's exclusive control is recognized in most circuits, but the plaintiff must plead the factual basis for its belief.

The PSLRA

For securities fraud, the Private Securities Litigation Reform Act imposes still more: the complaint must "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, state with particularity all facts on which that belief is formed," 15 U.S.C. § 78u-4(b)(1), and must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," § 78u-4(b)(2).

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007), held that the inference of scienter must be "cogent and at least as compelling as any opposing inference of nonfraudulent intent," and that courts must consider the complaint in its entirety and weigh competing inferences, which is an unusual instruction at the pleading stage.

Discovery is also stayed during the pendency of a motion to dismiss in PSLRA cases, § 78u-4(b)(3)(B), which is why the motion carries so much weight in securities litigation. See Securities Compliance for Startups for the regulatory background.

What is not subject to heightened pleading

Rule 9(b) is an exception, and courts should not extend it by analogy. Negligence, breach of contract, patent infringement (post-Form 18, ordinary Twombly pleading applies), trademark infringement, and most statutory claims are governed by Rule 8.

Part III: What the court may consider

This is the most consequential procedural question in Rule 12 practice, because it determines whether the motion stays a motion to dismiss or becomes summary judgment.

The conversion rule

Rule 12(d): "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion."

Conversion is usually bad for the movant: it opens the door to Rule 56(d) discovery requests and delays resolution. Most defendants work hard to stay inside the pleadings.

The four categories a court may consider without conversion

  1. The complaint itself, including its allegations and any inconsistencies.
  2. Exhibits attached to the complaint. Rule 10(c) makes an attached written instrument part of the pleading for all purposes. Where an exhibit contradicts an allegation, most courts hold the exhibit controls.
  3. Documents incorporated by reference, meaning documents the complaint refers to extensively or relies upon, whose authenticity is not disputed. The classic case is a contract sued upon but not attached.
  4. Matters subject to judicial notice under Fed. R. Evid. 201: facts "not subject to reasonable dispute" because they are generally known in the jurisdiction or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Court filings, SEC filings, patent and trademark records, and government publications commonly qualify.

How these doctrines get abused, and how to fight back

Defendants routinely attach a stack of documents and label them "incorporated by reference" or "judicially noticeable." Two responses work:

  • The document may be noticed for its existence, not for the truth of its contents. A court may notice that a press release was issued and said X; it may not notice that X was true. Courts have grown notably stricter about this distinction.
  • Incorporation requires reliance, not mere mention. A passing reference does not incorporate a 200-page agreement, and a complaint that mentions a report does not adopt every statement in it.

If the defendant's motion depends on disputed facts drawn from extrinsic documents, ask the court either to exclude them or to convert the motion and permit Rule 56(d) discovery. See Summary Judgment Under Rule 56.

Part IV: Rule 12(b)(1) and jurisdiction

Facial versus factual attacks

A facial attack accepts the complaint's allegations as true and argues they are insufficient to establish jurisdiction. The standard resembles Rule 12(b)(6).

A factual attack contests the truth of the jurisdictional allegations. Here the court may consider evidence outside the pleadings without converting the motion, and no presumption of truthfulness attaches to the plaintiff's allegations. The plaintiff bears the burden of proving jurisdiction.

The exception that matters: where the jurisdictional issue is intertwined with the merits, most courts require the jurisdictional facts to be resolved under Rule 56 or at trial rather than summarily.

Standing

Article III standing requires (1) an injury in fact that is concrete and particularized and actual or imminent, (2) fairly traceable to the challenged conduct, and (3) likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Two decisions transformed standing practice in statutory cases:

  • Spokeo, Inc. v. Robins, 578 U.S. 330 (2016): a bare procedural violation divorced from concrete harm does not confer standing; the injury must be "concrete," though intangible harms can qualify.
  • TransUnion LLC v. Ramirez, 594 U.S. 413 (2021): "No concrete harm, no standing." The Court held that class members whose inaccurate credit files were never disclosed to a third party lacked standing, while those whose files were disclosed had it. The Court also emphasized that every class member must have standing to recover damages.

TransUnion is now a first-line defense in privacy, consumer, and data breach cases, and it interacts sharply with class certification. See Class Actions Under Rule 23 and State Consumer Privacy Laws.

Jurisdictional or element? The Arbaugh line

Courts and litigants frequently mislabel merits elements as jurisdictional. The Supreme Court has pushed back repeatedly, holding that a statutory limit is jurisdictional only if Congress "clearly states" it is. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) (Title VII's 15-employee threshold is an element, not jurisdictional); Fort Bend County v. Davis, 587 U.S. 541 (2019) (Title VII's charge-filing requirement is a mandatory claim-processing rule, subject to forfeiture).

The distinction matters enormously: jurisdictional defects can be raised at any time and cannot be waived; claim-processing rules can be forfeited.

Sequencing

Part V: The other Rule 12 motions

12(b)(2), (3), (4), (5): the waivable defenses

12(b)(2) personal jurisdiction is covered in detail in Personal Jurisdiction Over Online and Foreign Defendants.

12(b)(3) improper venue. Note an important structural point: a forum selection clause pointing to another federal district is enforced through a motion to transfer under 28 U.S.C. § 1404(a), not a Rule 12(b)(3) motion, because venue is "proper" if it satisfies § 1391 regardless of the clause. Atlantic Marine Construction Co. v. U.S. District Court, 571 U.S. 49 (2013). Where the clause points to a state or foreign forum, the vehicle is forum non conveniens. Atlantic Marine also holds that a valid clause should control "except in the most unusual cases," that the plaintiff's choice of forum gets no weight, and that private-interest factors are deemed to weigh entirely in favor of the contractual forum.

12(b)(4) and 12(b)(5) address defects in the summons itself and in the manner of service. They are technical, rarely case-dispositive (courts usually quash and permit re-service), and often paired with a Rule 4(m) argument that the 90-day service period has expired.

12(b)(7) and Rule 19

Failure to join a required party. The Rule 19 analysis is: (1) is the absentee required (complete relief impossible without them, or their interest would be impaired, or existing parties face inconsistent obligations); (2) is joinder feasible (jurisdiction, venue, no destruction of diversity); (3) if not feasible, should the action proceed or be dismissed under Rule 19(b)'s equity-and-good-conscience factors.

This matters most in IP cases involving co-owners and exclusive licensees, in contract cases with multiple obligors, and in cases involving foreign sovereigns or tribes who cannot be joined.

12(c) judgment on the pleadings

Available "[a]fter the pleadings are closed, but early enough not to delay trial." The standard is the same as 12(b)(6) when brought by a defendant. A plaintiff may also move, in which case it must show that the answer's denials and affirmative defenses do not raise a material issue.

12(c) is the natural home for a defense that becomes available after answering, and for a defendant who failed to move under 12(b)(6) but wants an early merits ruling.

12(e) more definite statement

Available where a pleading "is so vague or ambiguous that the party cannot reasonably prepare a response." It is disfavored and rarely granted, because discovery is the ordinary cure. It is genuinely useful in two situations: shotgun pleadings that incorporate every prior paragraph into every count, and complaints that make it impossible to tell which defendant is accused of what.

12(f) motion to strike

The court may strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike are disfavored and are frequently a waste of client money. Two legitimate uses: striking affirmative defenses that are legally unavailable (which narrows discovery), and striking genuinely scandalous allegations that will prejudice the client if they remain on a public docket.

A note on affirmative defenses: courts are split on whether Twombly and Iqbal apply to them. The prudent course is to plead defenses with at least a sentence of factual support.

Part VI: Leave to amend

The standard

Rule 15(a)(1)(B) gives a plaintiff 21 days after service of a Rule 12(b), (e), or (f) motion to amend once as of right. That deadline is short and easy to miss, and it is one of the most valuable rights a plaintiff has, because it permits fixing the complaint without asking anyone's permission.

After that, amendment requires the opposing party's consent or leave of court, and "[t]he court should freely give leave when justice so requires." Rule 15(a)(2).

Foman v. Davis, 371 U.S. 178, 182 (1962), lists the reasons for denial: undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment.

Practical guidance

For plaintiffs: decide quickly whether to amend as of right. Amending in response to a motion is not an admission and it moots the motion, which usually saves months. Ask for leave in the alternative in every opposition, and identify what you would add.

For defendants: consider whether winning a dismissal with leave to amend actually helps. If the plaintiff can plead around the defect, the motion may just teach the plaintiff how to write a better complaint. That is the central strategic question in Rule 12 practice, and it deserves an honest answer before filing.

Dismissal with prejudice is appropriate where amendment would be futile, which usually requires either a legal bar (limitations, preemption, immunity) or repeated failed attempts. Ask for it expressly; courts default to allowing amendment.

Part VII: Strategy

When to file

File when:

  • A legal bar disposes of the claim entirely: statute of limitations apparent on the face of the complaint, preemption, immunity, release, failure of a statutory prerequisite, or the economic loss rule.
  • Standing is genuinely absent, particularly in statutory damages cases after TransUnion.
  • A contract document attached to or incorporated in the complaint contradicts the pleaded theory.
  • Rule 9(b) applies and the complaint pleads fraud generically.
  • A discovery stay attaches (PSLRA), or a stay is realistically obtainable, so that the motion has cost-avoidance value even if it fails.
  • The claim is so defective that dismissal will be with prejudice.
  • The motion will materially narrow the case, eliminating a claim that would otherwise drive expensive discovery (punitive damages theories, a class allegation, a fee-shifting claim).

When not to file

Do not file when:

  • The complaint has one thin claim among several strong ones, and the thin one will be replaced by a better-pleaded version.
  • The motion depends on facts outside the pleadings.
  • The client's real objective is speed, and the motion adds four months to a case with a strong summary judgment position.
  • The judge is known to deny these motions routinely and to hold the delay against the movant. Know your court.
  • The only effect is to educate the plaintiff about what its complaint is missing.

That last point deserves emphasis. A motion to dismiss is a free tutorial for the plaintiff's lawyer. If the defect is curable, you are usually better off answering, taking discovery, and moving for summary judgment on a record you helped build.

Writing the motion

  • Lead with the strongest ground, not with jurisdiction if jurisdiction is weak. But remember Rule 12(g): all available defenses go in this motion, even the ones you lead away from.
  • Quote the complaint, do not characterize it. Judges check.
  • Address the plaintiff's best version of its own claim. Attacking a strawman is transparent.
  • Keep the elements visible. A short table of elements against allegations is persuasive and easy to follow.
  • Ask for specific relief: dismissal with prejudice as to which counts, and why amendment is futile.
  • Respect the page limits and standing orders. Emergency and dispositive motion practice is where local rules bite.

Writing the opposition

  • Take Iqbal step one head-on. Identify which allegations are factual and cite them by paragraph. Do not let the defendant characterize your facts as conclusions unopposed.
  • Give the court the plausible narrative. Plausibility is context-specific; tell the story that makes the inference natural.
  • Rebut the innocent explanation. If the defendant offers one, explain why the facts you pleaded make it less likely.
  • Police the extrinsic documents. Object to improper judicial notice and to over-broad incorporation, and ask for conversion and Rule 56(d) discovery in the alternative.
  • Request leave to amend in the alternative, with a proffer of what you would add. This alone converts many dismissals with prejudice into dismissals without.
  • Do not concede by silence. Any argument not addressed is usually treated as conceded.

A worked example

Hollis Analytics, Inc. (fictional) sues Ridgeline Data Corp. (fictional) in federal court, alleging that Ridgeline misappropriated Hollis's proprietary scoring model, breached a mutual NDA, and made false statements about Hollis to a shared customer. The complaint attaches the NDA, alleges "on information and belief" that Ridgeline's engineers copied the model, and pleads trade secret misappropriation, breach of contract, tortious interference, and false advertising under 15 U.S.C. § 1125(a).

Ridgeline's Rule 12 analysis:

  • 12(b)(1)? No obvious defect. Federal question jurisdiction exists on the DTSA and Lanham Act claims, with supplemental jurisdiction over the rest.
  • 12(b)(2), (3)? Ridgeline is a Delaware corporation headquartered in the forum. No.
  • 12(b)(6) on the trade secret claim? Strong candidate. The complaint identifies the trade secret only as "the scoring model" and pleads copying entirely on information and belief without facts about access or similarity. Many courts require more, and this is the claim driving the case.
  • 12(b)(6) on the NDA claim? The attached NDA contains a two-year term that expired eight months before the alleged conduct. Because the document is attached, the court considers it, and it contradicts the claim. Strong.
  • 12(b)(6) on false advertising? The alleged statements were made in a private sales conversation with one customer. Lanham Act false advertising requires commercial advertising or promotion, which generally means dissemination sufficiently to the relevant purchasing public. One private conversation usually fails. See False Advertising and Lanham Act Section 43(a).
  • Rule 9(b)? The tortious interference claim is pleaded around alleged misrepresentations. In some circuits that triggers Rule 9(b). Worth raising.

Strategic judgment. The NDA and false advertising grounds are likely to produce dismissals with prejudice, because neither can be cured by better pleading. The trade secret ground will probably produce a dismissal with leave to amend, and Hollis will replead with the specificity the court demands, which arguably helps Ridgeline by forcing early identification of the alleged secrets. See Trade Secret Misappropriation Litigation Under the Defend Trade Secrets Act.

So the motion is worth filing, and Ridgeline should file all grounds at once (Rule 12(g)), lead with the NDA expiration (concrete, documentary, dispositive), and ask for dismissal with prejudice as to the contract and false advertising counts specifically.

Hollis's response. Amend as of right within 21 days. Drop the false advertising claim (it is not fixable and it weakens the complaint). Replead the contract claim under a surviving confidentiality provision if one exists, or drop it. Add the trade secret specificity: what the model comprises, who had access, what Ridgeline's product does that it did not do before, and when it changed. The amended complaint is stronger, and Ridgeline's motion is moot.

Result. Two months, some fees, a materially better complaint, and a case that will be decided on the trade secret claim. Whether that is a win for Ridgeline depends on whether the trade secret claim was ever going to go away.

Checklists

Before filing a Rule 12 motion

  • Inventory every available Rule 12 defense (Rule 12(g)(2) forecloses a second bite).
  • Confirm the deadline (21 days after service, or 60 if waiver of service was executed; check for extensions).
  • Determine whether any defense is jurisdictional versus a claim-processing rule.
  • Assess curability: would dismissal be with or without prejudice?
  • Assess cost-benefit: does a stay of discovery attach, or is one realistically available?
  • Identify what the court may consider without conversion, and stay inside it.
  • Check the judge's standing order and local rules on pre-motion conferences (several districts require one).
  • Consider whether a Rule 12(e) or a targeted 12(f) motion better serves the client.

Before opposing

  • Calendar the Rule 15(a)(1)(B) 21-day amendment window immediately.
  • Decide amend-versus-oppose in the first week.
  • Map each element of each claim to specific complaint paragraphs.
  • Object to improper extrinsic evidence; request exclusion or conversion plus Rule 56(d).
  • Address every argument raised; silence is concession.
  • Request leave to amend in the alternative with a specific proffer.

Frequently asked questions

How long do I have to respond to a complaint? 21 days after service, or 60 days if the defendant timely waived service under Rule 4(d) (90 for a defendant outside the United States). Filing a Rule 12 motion suspends the answer deadline until 14 days after the court's ruling. Rule 12(a)(4).

If my motion to dismiss is denied, do I have to answer? Yes, within 14 days after notice of the court's action. Rule 12(a)(4)(A).

Can I file a second motion to dismiss after the plaintiff amends? Yes, as to the amended complaint, but Rule 12(g)(2) still bars raising defenses that were available and omitted the first time. The safest course is to raise everything initially.

Does a motion to dismiss stay discovery? Not automatically in most cases. The PSLRA imposes an automatic stay in securities cases. Otherwise you must ask, and courts vary widely. Many judges will stay discovery where the motion is potentially dispositive and the burden is substantial.

What is a shotgun pleading? A complaint that incorporates all preceding allegations into every count, or that fails to separate claims, or that lumps defendants together. Several circuits, especially the Eleventh, treat these as independently dismissible, and Rule 12(e) is the classic response.

Can I attach documents to my motion? Only documents the court may consider: exhibits to the complaint, documents incorporated by reference, and judicially noticeable materials. Attaching more risks conversion to summary judgment.

What is the difference between dismissal with and without prejudice? Without prejudice means the plaintiff may replead or refile. With prejudice is an adjudication on the merits with preclusive effect. Courts default to without prejudice for pleading defects and with prejudice for incurable legal bars.

Are motions to strike worth filing? Usually not, unless the defense you are striking would expand discovery or the allegation is genuinely scandalous. Judges see them as make-work more often than not.

Does the plausibility standard apply in state court? Not necessarily. Many states retained Conley-style notice pleading, and some are code-pleading jurisdictions with stricter requirements. Always check the forum's standard rather than assuming Twombly governs.

Closing thought

The most useful way to think about Rule 12 is that it separates two very different questions, and the discipline of keeping them separate is most of the skill.

The first question is whether the plaintiff has told a story that, if true, entitles it to relief. That is Twombly and Iqbal, and it is answered inside the four corners of the complaint plus a small set of documents. The second question is whether the story is true. That is discovery and summary judgment, and it has no place in a motion to dismiss no matter how obviously false the allegations seem to the client paying for the motion.

Defendants lose Rule 12 motions mostly by trying to argue the second question in the first forum. Plaintiffs lose them mostly by pleading conclusions and hoping discovery will supply the facts. Both mistakes are avoidable, and both are expensive.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Pleading standards and local practice vary by court and judge. Consult qualified litigation counsel about any particular complaint or motion.