Motion to dismiss under Rule 12 - Next Generation Bar Exam

1. Which seven defenses may be raised by motion under Rule 12(b)?

   Lack of subject-matter or personal jurisdiction, venue, process, service, failure to state a claim, and Rule 19 joinder. These defenses may be raised by pre-answer motion or in the answer.

2. Under Rule 12(g)(2), what limit applies to a party that has made a Rule 12 motion?

   It may not make another Rule 12 motion raising a defense that was available but omitted from the first. This consolidation rule prevents serial pre-answer motions.

3. What is the first step of the Iqbal analysis of a complaint?

   Identifying and disregarding conclusory allegations that are not entitled to the assumption of truth. The court then asks whether the remaining well-pleaded facts plausibly suggest entitlement to relief.

4. Under Twombly and Iqbal, what must a complaint contain to survive a Rule 12(b)(6) motion?

   Enough factual matter, accepted as true, to state a claim that is plausible on its face. Plausibility requires more than a sheer possibility that the defendant acted unlawfully.

5. A defendant files a Rule 12(b)(6) motion, which is denied, and then answers, asserting lack of personal jurisdiction. What is the status of the jurisdictional defense?

   It is waived. Personal jurisdiction had to be raised in the first Rule 12 motion.

6. Which Rule 12(b) defenses are waived if omitted from a party's first Rule 12 motion or responsive pleading?

   Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. These are the disfavored defenses that must be raised at the first opportunity.

7. When may a party move for a more definite statement under Rule 12(e)?

   When a pleading is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before a responsive pleading and must point out the defects.

8. Under Rule 12(f), what may a court strike from a pleading?

   An insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. A party must move to strike within 21 days after being served if no response is allowed, or before responding.

9. A complaint alleges only that the defendants 'conspired to restrain trade,' with no facts suggesting an agreement. How should the court rule on a Rule 12(b)(6) motion?

   Grant it, because the conclusory allegation does not state a plausible claim. A bare assertion of conspiracy is a legal conclusion that the court does not accept as true.

10. Until when may the defenses of failure to state a claim and failure to join a required party be raised?

    Through the end of trial. They may be raised in a pleading, by a Rule 12(c) motion, or at trial.

11. When a court denies a Rule 12 motion, when must the moving party serve its answer?

    Within 14 days after notice of the court's action. Filing a Rule 12 motion suspends the time to answer until the motion is decided.

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