Paralegal Certification PrepLitigationMedium
A paralegal is preparing a motion to dismiss a civil complaint based on the plaintiff's failure to state a claim upon which relief can be granted. The attorney explains that even if all the factual allegations in the complaint are assumed to be true, the plaintiff has not pleaded sufficient facts to establish a legal cause of action. Under which Federal Rule of Civil Procedure (FRCP) would this motion typically be filed?
- AFRCP 12(b)(7)
- BFRCP 12(b)(1)
- CFRCP 12(b)(2)
- DFRCP 12(b)(6)
Show answer & explanationAnswer & explanation
Correct answer: D. FRCP 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to file a motion to dismiss for 'failure to state a claim upon which relief can be granted.' This means that even if all facts alleged by the plaintiff are true, they do not constitute a legally recognized claim.
Why the other options are wrong
- A. FRCP 12(b)(7) is for failure to join a party under Rule 19.
- B. FRCP 12(b)(1) is for lack of subject-matter jurisdiction.
- C. FRCP 12(b)(2) is for lack of personal jurisdiction.
Motion to Dismiss (FRCP 12(b)(6))
A pre-answer motion by a defendant arguing that, even if all the plaintiff's factual allegations are true, they do not state a claim upon which relief can be granted under the law.
- Filed before or with the answer
- Challenges legal sufficiency of the complaint
- Assumes plaintiff's facts are true for the motion's purpose
- If granted, may allow plaintiff to amend complaint
Memory trick: JURISDICTION (Subject/Personal) is first, then VENUE, PROCESS, PARTIES, and finally, the CLAIM.