The motion to dismiss is often the first substantive challenge in litigation. In civil cases under Rule 12(b)(6), the court assumes all well-pleaded facts in the complaint are true and determines whether they plausibly state a claim for relief under Ashcroft v. Iqbal and Bell Atlantic v. Twombly. A dismissal without prejudice allows the plaintiff to refile, typically after curing the deficiency. A dismissal with prejudice operates as a final adjudication on the merits. In criminal cases, dismissal motions often raise constitutional issues and may permanently bar reprosecution if granted with prejudice.
Attorney: "Your Honor, the defendant moves to dismiss under Rule 12(b)(6). Even accepting all allegations as true, the complaint fails to state a plausible claim for fraud because it does not allege reliance or damages with the particularity required by Rule 9(b)."
Judge: "The motion to dismiss is granted without prejudice. The plaintiff may file an amended complaint within 21 days addressing the deficiencies identified in this order."
Attorney: "The defense moves to dismiss the indictment. More than 70 days have elapsed since the defendant's initial appearance without trial, in violation of the Speedy Trial Act." Judge: "Does the government wish to be heard on excludable time?"
Students often confuse dismissal "with prejudice" and "without prejudice." Dismissal with prejudice bars refiling and functions as a judgment on the merits, while dismissal without prejudice allows the plaintiff to correct deficiencies and refile.
550 U.S. 544 (2007)
Replaced the old "no set of facts" standard with the plausibility standard for 12(b)(6) motions, requiring facts that make the claim plausible rather than merely conceivable.
556 U.S. 662 (2009)
Extended Twombly plausibility standard to all civil cases, establishing a two-step analysis: identify conclusory allegations, then determine if remaining facts plausibly state a claim.
355 U.S. 41 (1957)
Established the original liberal "no set of facts" standard that governed for 50 years before being retired by Twombly.
| Motion to Dismiss (Rule 12(b)(6)) | Motion for Summary Judgment (Rule 56) |
|---|---|
| Filed before or in lieu of answer | Filed after discovery |
| Tests legal sufficiency of pleading | Tests whether genuine factual dispute exists |
| Accepts all facts as true | Considers evidence and draws inferences |
| Only looks at complaint | Considers depositions, affidavits, documents |
| Standard: plausibility on face of complaint | Standard: no genuine dispute of material fact |
| Denial allows case to proceed to discovery | Denial sends case to trial |
What are the common grounds for a motion to dismiss in federal court?
Under FRCP 12(b): lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service, failure to state a claim, and failure to join a required party.
What is the difference between a 12(b)(6) motion and summary judgment?
A 12(b)(6) tests the legal sufficiency of the complaint on its face, accepting all facts as true, without evidence. Summary judgment under Rule 56 is filed after discovery and considers evidence.
What standard does a complaint need to survive a motion to dismiss?
After Twombly and Iqbal, a complaint must contain sufficient factual matter to state a claim plausible on its face. Mere conclusory statements are insufficient.
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