Motion to Dismiss for Failure to State a Claim

When the failure to state a claim is used

Timing: usually before the answer. These motions usually come early, often before or with the answer. As a result, they can end or narrow a case before discovery starts.

What the rule requires

• A motion asserting a Rule 12(b) defense must be made before pleading if a responsive pleading is allowed.
• This defense may also be raised later — in a pleading, by a Rule 12(c) motion, or at trial (Rule 12(h)(2)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Civ. P. 12(b)(6) online. Also, the federal judiciary publishes the current rules and recent amendments.

The failure to state a claim in state court

State courts follow their own rules of procedure. Many states model their rules on the federal rules, so you will often find a similar failure to state a claim procedure. However, the name, the deadline and the required form can differ. Therefore, look up the matching rule in your state’s rules of civil procedure. Also read your court’s local rules. Our state procedures guide links to each state’s official rules.

Key terms

In addition, these terms come up often with this procedure:

• Demurrer: in California and some other states, a pleading that challenges the legal sufficiency of a complaint, similar to a federal motion to dismiss for failure to state a claim.

Related procedures

Similarly, these procedures often come up alongside it:

• Motion for Judgment on the Pleadings: a motion asking for judgment based only on the pleadings.
• Motion for Leave to Amend a Pleading: a request for permission to change a pleading when amendment is no longer allowed as a matter of course.
• Complaint: the pleading that starts a civil action. Under Rule 3, a civil action is commenced by filing a complaint with the court.

Before you rely on this page

Always read the current rule yourself instead of relying on a summary. Next, check the local rules and the judge’s standing orders, since they often add steps. Then look for recent decisions from your court that apply the rule. Finally, talk to a licensed attorney about your situation. You can find one in our directory.