Bar Exam (Uniform) Quiz: Motion To Dismiss
20 questions · exam conditions
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Motion To DismissQuestion 1 of 20

You represent a client being sued for breach of a written contract. The plaintiff's complaint alleges that your client failed to make a payment required by the contract. The complaint specifically references the contract by date and subject matter but does not attach it. You have a copy of the contract, which contains a clause that unambiguously excused your client's payment under the circumstances that occurred. You wish to file a Rule 12(b)(6) motion to dismiss based on this clause.

What is the proper way to present the contract to the court in support of your motion? Select one.

Attach the contract to the motion to dismiss, as the court may consider documents integral to and referenced in the complaint.
Do not attach the contract, as any submission of matters outside the pleadings will automatically convert the motion to one for summary judgment.
File the motion to dismiss without the contract, and separately file a motion for judicial notice of the contract's terms.
Attach an affidavit summarizing the relevant contract clause, as this is more efficient than submitting the entire document.
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Bar Exam (Uniform) Quiz

Bar Exam (Uniform) Quiz: Motion To Dismiss

Practice Motion To Dismiss in Bar Exam (Uniform) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Motion To Dismiss, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Uniform).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

You represent a client being sued for breach of a written contract. The plaintiff's complaint alleges that your client failed to make a payment required by the contract. The complaint specifically references the contract by date and subject matter but does not attach it. You have a copy of the contract, which contains a clause that unambiguously excused your client's payment under the circumstances that occurred. You wish to file a Rule 12(b)(6) motion to dismiss based on this clause.

What is the proper way to present the contract to the court in support of your motion? Select one.

  1. Attach the contract to the motion to dismiss, as the court may consider documents integral to and referenced in the complaint. (correct answer)
  2. Do not attach the contract, as any submission of matters outside the pleadings will automatically convert the motion to one for summary judgment.
  3. File the motion to dismiss without the contract, and separately file a motion for judicial notice of the contract's terms.
  4. Attach an affidavit summarizing the relevant contract clause, as this is more efficient than submitting the entire document.
Explanation: The correct answer is A. Generally, if matters outside the pleadings are presented to and not excluded by the court on a Rule 12(b)(6) motion, the motion must be treated as one for summary judgment. However, an exception exists for documents that are attached to the complaint, referenced in the complaint and central to the plaintiff's claim. Here, the contract is explicitly referenced and is central to the breach of contract claim, so the court can consider it without converting the motion. B is incorrect because this situation falls into a well-recognized exception to the conversion rule. C is incorrect because judicial notice is reserved for facts that are not subject to reasonable dispute, not for interpreting the terms of a private contract between parties. D is incorrect because an affidavit is itself a matter outside the pleadings, and the 'best evidence' would be the contract itself, which falls under the exception.

Question 2

You are defending a client in a lawsuit. The plaintiff's complaint is generally well-pleaded, but it includes a paragraph describing your client's political affiliations, which have no relevance to the commercial dispute at issue. You believe this allegation was included solely to cast your client in a negative light with the court or a potential jury.

What is the most targeted and appropriate motion to address this specific paragraph? Select one.

  1. A motion to dismiss for failure to state a claim under Rule 12(b)(6).
  2. A motion for sanctions against the plaintiff's attorney under Rule 11.
  3. A motion for a more definite statement under Rule 12(e).
  4. A motion to strike the paragraph from the complaint under Rule 12(f). (correct answer)
Explanation: The correct answer is D. Rule 12(f) specifically allows a court to 'strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.' An allegation of a party's political affiliation in a commercial dispute is a classic example of immaterial and potentially impertinent matter. A is incorrect because a 12(b)(6) motion attacks an entire claim, not just an offensive paragraph within an otherwise valid claim. B may be appropriate eventually, but the direct procedural tool to remove the allegation is a 12(f) motion. C is incorrect because the allegation is not vague or ambiguous; it is clear but improper.

Question 3

A group of investors sued a company and its CEO for securities fraud. The complaint alleged that 'the defendants engaged in a fraudulent scheme to inflate the company's stock price.' The complaint did not specify which statements were fraudulent, who made them, when they were made, or why they were fraudulent. The company's attorney is preparing a motion to dismiss.

What is the strongest basis for the company's motion to dismiss? Select one.

  1. The complaint fails to allege the circumstances constituting fraud with the particularity required by Rule 9(b). (correct answer)
  2. The complaint fails to meet the basic notice pleading requirements of Rule 8(a).
  3. The court lacks subject-matter jurisdiction because the claim is too speculative.
  4. The motion should be for a more definite statement, not dismissal, as the defect is one of clarity.
Explanation: The correct answer is A. Federal Rule of Civil Procedure 9(b) imposes a heightened pleading standard for claims of fraud or mistake, requiring a party to 'state with particularity the circumstances constituting fraud.' This typically means pleading the 'who, what, when, where, and how' of the alleged fraud. The complaint's vague allegation fails this standard, making a Rule 12(b)(6) motion based on non-compliance with Rule 9(b) the most precise and strongest argument. B is not wrong, but A is more specific and identifies the controlling rule for fraud claims. C is incorrect as the speculative nature of a claim does not affect subject-matter jurisdiction. D is incorrect because a failure to meet the Rule 9(b) standard is a basis for a Rule 12(b)(6) motion to dismiss, not just a 12(e) motion.

Question 4

You represent a company sued by a former employee who alleges two claims: Count I for breach of contract and Count II for defamation. Your review indicates that Count I is plausibly pleaded with sufficient factual support. However, Count II is legally deficient because the allegedly defamatory statement described in the complaint is, as a matter of law, a non-actionable statement of opinion.

What is the best strategic course of action regarding a pre-answer motion? Select one.

  1. File a Rule 12(b)(6) motion to dismiss the entire complaint because one of the counts is deficient.
  2. File a motion to sever Count II from Count I before moving to dismiss it.
  3. Forgo any motion to dismiss and file an answer addressing both counts to save time and expense.
  4. File a Rule 12(b)(6) motion to dismiss only Count II, while preparing to file an answer to Count I. (correct answer)
Explanation: When facing a complaint with multiple counts of varying merit, you need to understand that Rule 12(b)(6) motions can target specific counts rather than entire complaints. This allows for surgical precision in your pre-answer strategy. The correct approach here is D - file a Rule 12(b)(6) motion to dismiss only Count II while preparing an answer to Count I. Since Count II fails as a matter of law (the statement is non-actionable opinion), you can efficiently eliminate this weak claim early in litigation. Meanwhile, Count I appears well-pleaded, so attempting to dismiss it would likely fail and waste resources. By filing an answer to Count I, you advance that portion of the case while the motion on Count II is pending. A is wrong because Rule 12(b)(6) motions cannot dismiss entire complaints when only some counts are deficient. Courts will deny motions that overreach in this way. B is unnecessary and inefficient. Severance isn't required before moving to dismiss a specific count - Rule 12(b)(6) already allows you to target individual counts directly. C misses a strategic opportunity. When you have a clear winner on a motion to dismiss, you should take it. Eliminating even one count early narrows the scope of discovery, reduces litigation costs, and may encourage settlement on remaining claims. Study tip: Remember that Rule 12(b)(6) motions are count-specific tools. When analyzing complaints with multiple claims, evaluate each count separately and tailor your pre-answer strategy accordingly. Don't let weak counts survive simply because stronger ones exist in the same complaint.

Question 5

A defendant from State A was sued in federal court in State B. The defendant believed that the court in State B lacked personal jurisdiction over him. However, wanting to address the merits quickly, he filed an answer that denied the complaint's substantive allegations but made no mention of the personal jurisdiction defense. Two months later, after some initial discovery, the defendant filed a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2).

How is the court most likely to rule on the defendant's motion? Select one.

  1. Grant the motion, because personal jurisdiction is a fundamental right that cannot be waived by procedural error.
  2. Deny the motion, because the defense of lack of personal jurisdiction was waived when the defendant filed his answer without raising it. (correct answer)
  3. Grant the motion, because a party can raise a jurisdictional challenge at any point before trial begins.
  4. Deny the motion, but grant the defendant leave to amend his answer to include the defense of lack of personal jurisdiction.
Explanation: The correct answer is B. Under Federal Rule of Civil Procedure 12(h)(1), certain defenses, including lack of personal jurisdiction (12(b)(2)), are waived if they are not included in a pre-answer motion (if one is made) or in the defendant's answer. By filing an answer that omitted the personal jurisdiction defense, the defendant waived it. A is incorrect because personal jurisdiction, while a constitutional requirement, is a personal defense that can be waived by the defendant. C is incorrect as it misstates the rule; only the defense of lack of subject-matter jurisdiction can be raised at any point. D is incorrect because an amendment to the answer at this stage to add a waived defense would typically be considered futile and thus denied.

Question 6

A plaintiff sued a defendant for breach of contract. The defendant filed an answer admitting all the factual allegations in the complaint but raising the affirmative defense of accord and satisfaction. The defendant's answer detailed the subsequent agreement and the plaintiff's acceptance of the substituted performance. The plaintiff did not file a reply challenging these new facts. All pleadings are now closed.

Assuming the facts alleged in the answer legally establish the affirmative defense, what is the defendant's most appropriate next step? Select one.

  1. File a motion to dismiss under Rule 12(b)(6).
  2. File a motion for judgment on the pleadings under Rule 12(c). (correct answer)
  3. File a motion for summary judgment under Rule 56.
  4. Wait for trial and move for a judgment as a matter of law.
Explanation: The correct answer is B. A motion for judgment on the pleadings under Rule 12(c) is proper 'after the pleadings are closed but early enough not to delay trial.' It is used when the pleadings themselves (complaint and answer) reveal that one party is entitled to judgment as a matter of law. Here, because the defendant admitted the plaintiff's facts but raised a dispositive affirmative defense that the plaintiff did not contest in a reply, the pleadings show the defendant should win. A is incorrect because a 12(b)(6) motion must be made before an answer is filed. C is a possibility, but 12(c) is more precise because no evidence outside the pleadings is needed. D is incorrect as it would unnecessarily delay resolution until trial.

Question 7

You represent a client being sued for breach of a written contract. The plaintiff's complaint alleges that your client failed to make a payment required by the contract. The complaint specifically references the contract by date and subject matter but does not attach it. You have a copy of the contract, which contains a clause that unambiguously excused your client's payment under the circumstances that occurred. You wish to file a Rule 12(b)(6) motion to dismiss based on this clause.

What is the proper way to present the contract to the court in support of your motion? Select one.

  1. Attach the contract to the motion to dismiss, as the court may consider documents integral to and referenced in the complaint. (correct answer)
  2. Do not attach the contract, as any submission of matters outside the pleadings will automatically convert the motion to one for summary judgment.
  3. File the motion to dismiss without the contract, and separately file a motion for judicial notice of the contract's terms.
  4. Attach an affidavit summarizing the relevant contract clause, as this is more efficient than submitting the entire document.
Explanation: The correct answer is A. Generally, if matters outside the pleadings are presented to and not excluded by the court on a Rule 12(b)(6) motion, the motion must be treated as one for summary judgment. However, an exception exists for documents that are attached to the complaint, referenced in the complaint and central to the plaintiff's claim. Here, the contract is explicitly referenced and is central to the breach of contract claim, so the court can consider it without converting the motion. B is incorrect because this situation falls into a well-recognized exception to the conversion rule. C is incorrect because judicial notice is reserved for facts that are not subject to reasonable dispute, not for interpreting the terms of a private contract between parties. D is incorrect because an affidavit is itself a matter outside the pleadings, and the 'best evidence' would be the contract itself, which falls under the exception.

Question 8

A plaintiff properly served a summons and complaint on a corporate defendant on March 10. The plaintiff did not request that the defendant waive service. The defendant intends to file a Rule 12(b)(6) motion to dismiss instead of an answer.

Absent any court order or local rule to the contrary, what is the deadline for the defendant to file its motion? Select one.

  1. March 24.
  2. March 31. (correct answer)
  3. April 9.
  4. May 9.
Explanation: The correct answer is B. Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a defendant must serve an answer (or a Rule 12 motion) within 21 days after being served with the summons and complaint. Counting 21 days from March 10, the deadline is March 31. A (14 days) is incorrect. C (30 days) is incorrect. D (60 days) is the deadline that applies when a defendant timely returns a waiver of service, which did not happen here.

Question 9

A plaintiff sued a defendant in federal court, asserting a claim based on diversity jurisdiction. The complaint properly alleged that the parties were citizens of different states, but it stated that the amount in controversy was '$75,000 exactly.' The defendant, distracted by other matters, filed an answer and proceeded with discovery. One year later, on the eve of trial, the defendant's attorney realized the jurisdictional defect and filed a motion to dismiss for lack of subject-matter jurisdiction.

What is the likely outcome of the defendant's motion? Select one.

  1. The motion will be denied because the defendant waived the defense by failing to raise it in a timely manner.
  2. The motion will be denied because the court will deem the amount in controversy to be sufficient to preserve judicial economy.
  3. The motion will be granted because the amount in controversy fails to exceed $75,000, and this defect cannot be waived. (correct answer)
  4. The motion will be granted only if the defendant pays the plaintiff's costs incurred due to the delay in raising the issue.
Explanation: The correct answer is C. For diversity jurisdiction, 28 U.S.C. § 1332 requires that the amount in controversy exceed 75,000.Anamountof′75,000. An amount of '75,000 exactly' is insufficient. Lack of subject-matter jurisdiction is a non-waivable defense under Rule 12(h)(3) and can be raised by any party, or by the court itself, at any time during the litigation, including on appeal. A is incorrect because subject-matter jurisdiction cannot be waived. B is incorrect because parties and courts cannot create subject-matter jurisdiction by consent or for reasons of judicial economy. D is incorrect because while sanctions could theoretically be imposed for bad-faith litigation conduct, the granting of the motion itself is not conditioned on such payment.

Question 10

A plaintiff sued a hospital for medical malpractice. The hospital filed a Rule 12(b)(6) motion to dismiss, arguing that the complaint failed to state a claim. In its supporting brief, the hospital relied on and attached an affidavit from the treating physician, which contradicted the factual allegations in the plaintiff's complaint. The plaintiff filed an opposition, arguing that the affidavit was improper for the court to consider.

How must the court treat the hospital's motion and the physician's affidavit? Select one.

  1. The court must strike the motion entirely because it was improperly supported by matters outside the pleadings.
  2. The court must consider the affidavit because it provides critical facts for determining whether the plaintiff has a plausible claim.
  3. The court must either exclude the affidavit or convert the motion to a motion for summary judgment under Rule 56. (correct answer)
  4. The court may consider the affidavit only if it determines that the statements within it are undisputed by the plaintiff.
Explanation: The correct answer is C. According to Rule 12(d), if, on a motion under Rule 12(b)(6), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. The court has two choices: ignore the affidavit and rule based on the complaint alone, or convert the motion, which requires giving parties notice and an opportunity to present all material pertinent to a summary judgment motion. A is incorrect; the motion is not stricken, but either decided on the pleadings or converted. B is incorrect because a court cannot consider outside evidence on a pure 12(b)(6) motion. D is incorrect because the procedure for considering outside evidence is conversion, not a preliminary determination of whether the facts are disputed.

Question 11

A corporation sued a competitor for unfair business practices. The competitor filed a Rule 12(b)(6) motion, arguing that the specific practices alleged in the complaint did not constitute an actionable tort under state law. The district court agreed, denied the corporation leave to amend, and entered a final judgment dismissing the action 'with prejudice.' The corporation did not appeal. A year later, the corporation filed a new lawsuit in the same court against the same competitor based on the exact same set of facts and legal theory.

What is the most likely result of the second lawsuit? Select one.

  1. The suit will proceed because a dismissal on the pleadings is not a final judgment on the merits.
  2. The suit will be dismissed based on the doctrine of issue preclusion (collateral estoppel), but not claim preclusion.
  3. The suit will proceed if the corporation can now produce evidence to support its claim.
  4. The suit will be dismissed based on the doctrine of claim preclusion (res judicata). (correct answer)
Explanation: This question tests your understanding of claim preclusion (res judicata), a fundamental doctrine that prevents parties from relitigating claims that have already been decided. When you see a fact pattern involving a dismissed case followed by a second lawsuit on similar facts, immediately analyze the four elements of claim preclusion. Claim preclusion applies when: (1) there was a final judgment on the merits, (2) the claims arise from the same transaction or occurrence, (3) the parties are the same, and (4) the plaintiff had a full and fair opportunity to litigate. Here, all elements are satisfied. The Rule 12(b)(6) dismissal "with prejudice" constituted a final judgment on the merits, both suits involve identical facts and legal theories, the parties are identical, and the corporation had opportunity to litigate (though it chose not to appeal). Answer D is correct because the second lawsuit will be barred by claim preclusion since it's based on the exact same facts and legal theory as the first dismissed case. Answer A is wrong because a Rule 12(b)(6) dismissal with prejudice is indeed a final judgment on the merits. Answer B incorrectly suggests issue preclusion applies - issue preclusion prevents relitigation of specific factual or legal issues, but here the entire claim is barred. Answer C is incorrect because claim preclusion prevents refiling regardless of new evidence; the corporation should have developed its evidence before the first dismissal or sought leave to amend. Remember: "With prejudice" dismissals trigger claim preclusion analysis. Always check if the plaintiff is trying to relitigate the same claim rather than pursue a genuinely new cause of action.

Question 12

A defendant was sued in a federal court that the defendant believed was an improper venue. The defendant also believed the complaint failed to state a claim upon which relief could be granted. The defendant's attorney first filed a Rule 12(b)(6) motion to dismiss for failure to state a claim. After that motion was denied, the defendant filed a second pre-answer motion to dismiss for improper venue under Rule 12(b)(3).

How should the court rule on the defendant's second motion concerning venue? Select one.

  1. Deny the motion, because the defense of improper venue was waived by its omission from the initial Rule 12 motion. (correct answer)
  2. Grant the motion if venue is in fact improper, because a party can challenge venue at any time before filing an answer.
  3. Deny the motion as untimely, because all dispositive motions must be filed within 21 days of service of the complaint.
  4. Treat the motion as a request to transfer the case and analyze it under the appropriate transfer statute.
Explanation: The correct answer is A. Federal Rule of Civil Procedure 12(g)(2) requires a party that makes a pre-answer motion under Rule 12 to join all of its available defenses and objections under Rule 12 into that single motion. By filing a 12(b)(6) motion without including the available 12(b)(3) defense of improper venue, the defendant waived the venue defense under Rule 12(h)(1). B is incorrect because it ignores the consolidation and waiver rules. C is incorrect because the problem is waiver, not untimeliness in the general sense. D is incorrect because the court should not reach the merits of the venue argument, as the defense has been waived.

Question 13

You represent a company sued by a former employee who alleges two claims: Count I for breach of contract and Count II for defamation. Your review indicates that Count I is plausibly pleaded with sufficient factual support. However, Count II is legally deficient because the allegedly defamatory statement described in the complaint is, as a matter of law, a non-actionable statement of opinion.

What is the best strategic course of action regarding a pre-answer motion? Select one.

  1. File a Rule 12(b)(6) motion to dismiss the entire complaint because one of the counts is deficient.
  2. File a motion to sever Count II from Count I before moving to dismiss it.
  3. Forgo any motion to dismiss and file an answer addressing both counts to save time and expense.
  4. File a Rule 12(b)(6) motion to dismiss only Count II, while preparing to file an answer to Count I. (correct answer)
Explanation: When facing a complaint with multiple counts of varying merit, you need to understand that Rule 12(b)(6) motions can target specific counts rather than entire complaints. This allows for surgical precision in your pre-answer strategy. The correct approach here is D - file a Rule 12(b)(6) motion to dismiss only Count II while preparing an answer to Count I. Since Count II fails as a matter of law (the statement is non-actionable opinion), you can efficiently eliminate this weak claim early in litigation. Meanwhile, Count I appears well-pleaded, so attempting to dismiss it would likely fail and waste resources. By filing an answer to Count I, you advance that portion of the case while the motion on Count II is pending. A is wrong because Rule 12(b)(6) motions cannot dismiss entire complaints when only some counts are deficient. Courts will deny motions that overreach in this way. B is unnecessary and inefficient. Severance isn't required before moving to dismiss a specific count - Rule 12(b)(6) already allows you to target individual counts directly. C misses a strategic opportunity. When you have a clear winner on a motion to dismiss, you should take it. Eliminating even one count early narrows the scope of discovery, reduces litigation costs, and may encourage settlement on remaining claims. Study tip: Remember that Rule 12(b)(6) motions are count-specific tools. When analyzing complaints with multiple claims, evaluate each count separately and tailor your pre-answer strategy accordingly. Don't let weak counts survive simply because stronger ones exist in the same complaint.

Question 14

You are representing a defendant sued by a pro se plaintiff. The complaint is a rambling, 20-page narrative that is difficult to understand. It appears to allege a claim for breach of contract, but it is so disorganized and filled with irrelevant details that you cannot ascertain the specific contractual provision that was allegedly breached or the specific actions constituting the breach. You cannot reasonably frame a responsive pleading.

What is the most appropriate initial motion to file on behalf of your client? Select one.

  1. A motion to dismiss for failure to state a claim under Rule 12(b)(6).
  2. A motion for a more definite statement under Rule 12(e). (correct answer)
  3. A motion to strike the entire complaint under Rule 12(f).
  4. A motion for summary judgment under Rule 56.
Explanation: The correct answer is B. A motion for a more definite statement under Rule 12(e) is the proper tool when a pleading is 'so vague or ambiguous that the party cannot reasonably prepare a response.' This perfectly describes the situation. While a Rule 12(b)(6) motion (A) might ultimately be successful, the immediate problem is the inability to understand the claim to even assess its legal sufficiency. A 12(e) motion is designed to cure this specific defect. A motion to strike under 12(f) (C) is used to remove redundant, immaterial, impertinent, or scandalous matter from a pleading, not to dispose of the entire pleading itself. A motion for summary judgment (D) is premature as it requires a showing that there is no genuine dispute of material fact, which cannot be determined yet.

Question 15

You represent a defendant from Texas sued in federal court in Idaho. The plaintiff is from Idaho. The case concerns a car accident that occurred in Wyoming. The complaint seeks $60,000 in damages. You believe the court lacks subject-matter jurisdiction (insufficient amount in controversy), lacks personal jurisdiction over your client, and is an improper venue.

What is the proper procedural method for raising all of these defenses? Select one.

  1. File an answer asserting all three defenses, then file a motion for judgment on the pleadings.
  2. File a motion to dismiss for lack of subject-matter jurisdiction first, and if that fails, file a second motion for the other defenses.
  3. File a single, consolidated pre-answer motion to dismiss asserting lack of subject-matter jurisdiction, lack of personal jurisdiction, and improper venue. (correct answer)
  4. File three separate pre-answer motions to dismiss so the court can address each jurisdictional issue distinctly.
Explanation: The correct answer is C. Federal Rule of Civil Procedure 12(g) requires that if a party makes a pre-answer motion under Rule 12, it must consolidate all of its available Rule 12 defenses into that single motion. Failure to include waivable defenses like lack of personal jurisdiction and improper venue will result in their waiver under Rule 12(h). Therefore, the correct procedure is to file one motion asserting all three grounds for dismissal. A is less efficient and risks waiver if not done correctly. B and D are incorrect because they directly violate the consolidation principle of Rule 12(g) and would result in the waiver of the personal jurisdiction and venue defenses.

Question 16

A landlord sued a tenant for unpaid rent. However, the property was co-owned by the landlord and his brother as joint tenants with right of survivorship. The lease agreement was with both co-owners. The landlord's brother, whose rights are directly implicated and who would be needed to grant complete relief, was not named as a party to the lawsuit.

What is the most precise procedural basis for the tenant to move for dismissal? Select one.

  1. Failure to state a claim under Rule 12(b)(6).
  2. Lack of subject-matter jurisdiction under Rule 12(b)(1).
  3. Failure to join a party required by Rule 19, raised via Rule 12(b)(7). (correct answer)
  4. Improper venue under Rule 12(b)(3).
Explanation: The correct answer is C. Rule 19 governs the joinder of required parties. The brother, as a co-owner and co-landlord, is likely a party who is required to be joined if feasible. A defendant raises the defense of failure to join such a party through a motion to dismiss under Rule 12(b)(7). A is incorrect because the complaint might state a perfectly valid claim for breach of contract; the defect is in who is (and is not) a party to the suit. B is incorrect unless the joinder of the brother would destroy diversity, but the direct rule governing the issue is Rule 19, raised by Rule 12(b)(7). D is unrelated to the issue of missing parties.

Question 17

A plaintiff properly served a summons and complaint on a corporate defendant on March 10. The plaintiff did not request that the defendant waive service. The defendant intends to file a Rule 12(b)(6) motion to dismiss instead of an answer.

Absent any court order or local rule to the contrary, what is the deadline for the defendant to file its motion? Select one.

  1. March 24.
  2. March 31. (correct answer)
  3. April 9.
  4. May 9.
Explanation: The correct answer is B. Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a defendant must serve an answer (or a Rule 12 motion) within 21 days after being served with the summons and complaint. Counting 21 days from March 10, the deadline is March 31. A (14 days) is incorrect. C (30 days) is incorrect. D (60 days) is the deadline that applies when a defendant timely returns a waiver of service, which did not happen here.

Question 18

A plaintiff filed a libel lawsuit in federal court. The complaint accurately quoted the allegedly defamatory statement made by the defendant. The complaint also included the date the statement was published, which was three years prior to the filing of the lawsuit. The applicable state law provides for a one-year statute of limitations for libel claims.

What is the defendant's most effective procedural step to secure a dismissal? Select one.

  1. File a motion to dismiss for failure to state a claim under Rule 12(b)(6). (correct answer)
  2. File an answer asserting the statute of limitations as an affirmative defense and then move for judgment on the pleadings.
  3. File a motion to dismiss for lack of subject-matter jurisdiction because the claim is time-barred.
  4. File a motion for summary judgment, supported by an affidavit stating the date of publication.
Explanation: The correct answer is A. While the statute of limitations is an affirmative defense that must typically be raised in the answer, an exception allows for a Rule 12(b)(6) dismissal when the basis for the defense appears on the face of the complaint itself. Here, the complaint pleads facts that unequivocally show the claim is time-barred, so a 12(b)(6) motion is appropriate and efficient. B is a viable but less efficient route; dismissal can be achieved earlier via a 12(b)(6) motion. C is incorrect because a statute of limitations defense does not deprive the court of subject-matter jurisdiction. D is unnecessary because the key fact (the date of publication) is already in the complaint, so no outside evidence like an affidavit is needed.

Question 19

You are defending a client in a lawsuit. The plaintiff's complaint is generally well-pleaded, but it includes a paragraph describing your client's political affiliations, which have no relevance to the commercial dispute at issue. You believe this allegation was included solely to cast your client in a negative light with the court or a potential jury.

What is the most targeted and appropriate motion to address this specific paragraph? Select one.

  1. A motion to dismiss for failure to state a claim under Rule 12(b)(6).
  2. A motion for sanctions against the plaintiff's attorney under Rule 11.
  3. A motion for a more definite statement under Rule 12(e).
  4. A motion to strike the paragraph from the complaint under Rule 12(f). (correct answer)
Explanation: The correct answer is D. Rule 12(f) specifically allows a court to 'strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.' An allegation of a party's political affiliation in a commercial dispute is a classic example of immaterial and potentially impertinent matter. A is incorrect because a 12(b)(6) motion attacks an entire claim, not just an offensive paragraph within an otherwise valid claim. B may be appropriate eventually, but the direct procedural tool to remove the allegation is a 12(f) motion. C is incorrect because the allegation is not vague or ambiguous; it is clear but improper.

Question 20

A citizen of Oregon was visiting Montana for a ski trip. While there, he was injured in a slip-and-fall accident at a local Montana-based ski resort. After returning home to Oregon, the injured skier filed a lawsuit against the ski resort in federal district court in Oregon. The ski resort's only business is in Montana, and it does not advertise or solicit business in Oregon.

What is the ski resort's strongest argument for a motion to dismiss? Select one.

  1. The court lacks subject-matter jurisdiction over the claim.
  2. The court lacks personal jurisdiction over the ski resort. (correct answer)
  3. The venue is improper in the District of Oregon.
  4. The complaint fails to state a claim upon which relief can be granted.
Explanation: The correct answer is B. Personal jurisdiction requires that the defendant have sufficient minimum contacts with the forum state such that the suit does not offend 'traditional notions of fair play and substantial justice.' The ski resort is located in Montana, the injury occurred in Montana, and the resort has no contacts with Oregon. Therefore, the Oregon court almost certainly lacks personal jurisdiction over the resort. A is likely incorrect because there is probably diversity of citizenship (Oregon v. Montana) and the claim could exceed $75,000. C is also a strong argument, but the lack of personal jurisdiction is a more fundamental constitutional defect. D is incorrect as the facts likely support a plausible claim for negligence; the issue is where that claim can be brought.