The following paragraphs contain calculators for pertinent motion deadlines in the Federal Rules of Civil Procedure. Note that many of these rules can be modified by stipulation, a court’s local rules, a judge’s standing order, or a case-specific court order. Always check the Federal Rules of Civil Procedure, local rules, and judge’s orders, each of which are available on the relevant court’s website or in your case file on PACER.
Rule 12(b) Motions
A defendant ordinarily responds to a plaintiff’s complaint by filing an answer under Federal Rule of Civil Procedure 12(a). In certain circumstances, however, the Federal Rules permit a defendant to assert preliminary defenses by motion before answering. In those cases, a defendant may file a motion to dismiss under Federal Rule of Civil Procedure 12(b), which lists the defenses that may be raised by pre-answer motion.
As a general rule, defenses asserted under Rule 12(b) must be raised before the defendant serves a responsive pleading, if a responsive pleading is required. Fed. R. Civ. P. 12(b). When a responsive pleading is required, the deadline to file a Rule 12(b) motion typically corresponds to the deadline for serving an answer under Rule 12(a), which is generally 21 days after service of the operative complaint, unless a different deadline applies (for example, where service is waived).
Certain Rule 12(b) defenses—lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process—are waived if not raised in the defendant’s first Rule 12 motion or responsive pleading. Fed. R. Civ. P. 12(h)(1). Other defenses, including failure to state a claim upon which relief can be granted and failure to join a required party, may be raised later in the case, including in a motion for judgment on the pleadings under Rule 12(c) or at trial. Fed. R. Civ. P. 12(h)(2). A challenge to subject-matter jurisdiction may be raised at any time. Fed. R. Civ. P. 12(h)(3).
Rule 12(b) motions are often referred to as “pre-answer motions” because they are commonly filed at the outset of a case. A successful Rule 12(b) motion may eliminate the need for the defendant to file an answer altogether, which can provide a significant tactical advantage. For example, if the court lacks subject-matter jurisdiction over the claims asserted in the complaint, the court has no authority to adjudicate the dispute. In that circumstance, there is no reason for a defendant to plead defenses to an action that cannot be maintained in federal court.
Similar threshold defenses exist where the court lacks personal jurisdiction over the defendant or where venue is improper. Other Rule 12(b) defenses focus on defects in the manner in which the plaintiff initiated the action. Insufficient process and insufficient service of process challenge whether the summons and complaint were properly issued or served, while a motion based on failure to join a required party attacks the scope of the plaintiff’s suit.
A motion under Rule 12(b)(6), which replaced the common-law demurrer, challenges the legal sufficiency of the complaint. A defendant moving for dismissal under Rule 12(b)(6) asserts that the plaintiff has “failed to state a claim upon which relief can be granted,” meaning that even if all well-pleaded factual allegations are accepted as true, the plaintiff is not entitled to relief as a matter of law. For example, if a plaintiff brings a defamation claim in a jurisdiction that requires publication of the allegedly defamatory statement as an element of the claim, and the complaint fails to allege publication, dismissal under Rule 12(b)(6) may be appropriate.
Rule 12(e) Motion for More Definite Statement
Rule 12(e) motions for a more definite statement are due before serving a responsive pleading. Therefore, they are due no more than twenty-one (21) days after the pleading to which they pertain is served. If no responsive pleading is due, Rule 12(e) motions for a more definite statement are not contemplated. Fed. R. Civ. P. 12(e).
A motion for more definite statement may be used in addition, or in the alternative, to a 12(b)(6) motion. A defendant may make a motion for a definite statement of a complaint to which an answer is allowed, but which is so vague or ambiguous that the defendant cannot reasonably prepare a response.
Rule 12(f) Motion to Strike
Rule 12(f) motions to strike are due before serving a responsive pleading. Therefore, they are due no more than twenty-one (21) days after the operative complaint, counterclaim or crossclaim is served. If no responsive pleading is due, Rule 12(f) Motions to Strike are due twenty-one (21) days after the pleading to which they relate. Fed. R. Civ. P. 12(b), (e), (f).
When a defense has no grounds or when there has been something included in the pleading that is inappropriate or has no bearing on the case. This prevents those statements from being entered into official court records.
Motions, Notices of Hearing, and Affidavits (In General)
Written motions are due served at least fourteen (14) days before the scheduled hearing, unless the rules set a different time. Fed. R. Civ. P. 6(c)(1).) However, note that local rules often supersede this rule.
Oppositions to Motions
Deadlines for oppositions to motions are found in the court’s local rules. However, affidavits filed in opposition to motions are due at least seven (7) days before the hearing. Fed. R. Civ. P. 6((c)(2).
Summary Judgment Motions
Summary judgment motions are due within thirty (30) days after the close of all discovery. Fed. R. Civ. P. 56(b).
What is a motion for summary judgment?
A motion for summary judgment can be used to end the dispute over that portion of the case immediately. Even if everything the opponent is arguing is factually true, they still cannot win as a matter of law.
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
- Contrast a summary judgment motion from a 12(b)(6) motion:
- 12(b)(6) dismisses the entire case (or that claim), and it is saying that whatever the opponent is claiming is not actually legally correct. This is done once the defendant is served with the plaintiff’s complaint, and that is the only filing entered unless it is made concurrently with an answer. A 12(b)(6) motion cannot challenge any facts o the complaint. If under 12(b)(6) you attach any affidavit, document, evidence, this changes it to a Rule 56 evaluation.
- A Rule 56 motion for summary judgment does not have to address an entire claim. It can address merely a portion of that claim, and it is saying that even if all the facts are true, that still does not meet the required elements for proving a claim or defense. Rule 56 takes into account all of the discovery.
Who may move for summary judgment?
Either party (or in multiparty litigation, any party) may move for summary judgment.
When may a party move for summary judgment?
As noted above, a party may move for summary judgment any time until 30 days after the end of discovery (because by then, all the material facts of the case should be known). However, courts may modify this date in their scheduling orders.
A summary judgment motion is analytically similar to a directed verdict motion and a JNOV motion. The difference among these three motions is the timing:
- Before case (SJ), after close of P’s case or D’s case (DV), after verdict (JNOV – judgment non obstante veredicto).
Rule 56(g) allows the granting of partial motion for summary judgment, or the judge to grant summary judgment only as to certain issues of material fact or certain claims. When a plaintiff seeks summary judgment, it is often as to liability only (not damages).
Rule 56(a) mandates the following requirements for summary judgment motions:
- After adequate time for discovery and upon motion,
- against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, AND
- on which that party will bear burden of proof at trial, THEN
- summary judgment must be entered.