Bar Exam (Next Generation) Quiz: Motion To Dismiss Under Rule 12

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Motion To Dismiss Under Rule 12Question 1 of 12

Plaintiff, a citizen of State X, sued Defendant, a citizen of State Y, in federal court for breach of a contract to pay money to a joint venture. Plaintiff and Nonparty, a citizen of State Y, are the joint venture's only members. Defendant moved under Rule 12(b)(7) to dismiss for failure to join Nonparty. Nonparty cannot be joined without destroying complete diversity.

What should the court do with the defendant's motion?

Deny it, because the inability to join a party without destroying diversity requires the action to proceed without that party.

Grant it, because a party whose joinder would destroy diversity must be dismissed from the case.

Deny it, because the defendant must raise any Rule 19 objection in its answer, not by motion.

Determine whether, in equity and good conscience, the action should proceed without Nonparty or be dismissed.

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Bar Exam (Next Generation) Quiz: Motion To Dismiss Under Rule 12

Practice Motion To Dismiss Under Rule 12 in Bar Exam (Next Generation) 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 Under Rule 12, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Next Generation).

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

What should the court do with the defendant's motion?

Deny it, because the inability to join a party without destroying diversity requires the action to proceed without that party.
Grant it, because a party whose joinder would destroy diversity must be dismissed from the case.
Deny it, because the defendant must raise any Rule 19 objection in its answer, not by motion.
Determine whether, in equity and good conscience, the action should proceed without Nonparty or be dismissed. (correct answer)

Explanation: When you see a Rule 12(b)(7) motion to dismiss for failure to join a party, your first move is to think about Rule 19's two-step structure: is the absent party "required" under Rule 19(a), and if so, can they be joined? If joinder would destroy diversity jurisdiction, the court cannot automatically dismiss or automatically proceed. Instead, Rule 19(b) directs the court to determine "whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed." That is exactly what the correct answer describes. The court weighs factors like the prejudice to the absent person or existing parties, whether that prejudice could be reduced by shaping relief, whether a judgment without the absent party would be adequate, and whether the plaintiff has another adequate forum. The answer that says the case must simply proceed is wrong because a required party's absence can justify dismissal when equity requires it. The answer that says dismissal is automatic is wrong because Rule 19 requires balancing, not a per se rule. And the answer claiming a Rule 19 objection must be raised in the answer is wrong: Rule 12(b)(7) expressly allows this defense to be raised by motion. The key takeaway: when joinder would destroy diversity, never choose a categorical outcome; look for the equitable, case-specific inquiry.

Question 2

A defendant in a federal action knew that the summons and complaint had been left with a receptionist at its office who was not authorized to accept service. The defendant nevertheless filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim and did not mention the service defect. The court denied that motion. The defendant then filed a second motion to dismiss under Rule 12(b)(5) for insufficient service of process.

Should the district court grant the second motion?

Yes, because insufficient service of process is a nonwaivable defense that may be raised at any time before trial and is not subject to Rule 12 waiver.
Yes, because the earlier motion was limited to failure to state a claim and did not put the service defense at issue, so no waiver occurred.
No, because the defendant waived the defense by omitting it from the earlier Rule 12 motion and may not file another Rule 12 motion raising it. (correct answer)
No, because a Rule 12(b)(5) defense is waived only if omitted from a responsive pleading, not by omission from an earlier Rule 12 motion.

Explanation: Whenever you see a Rule 12 motion sequence, think about consolidation and waiver. Rule 12(g)(2) requires a party to raise every available Rule 12 defense in its first Rule 12 motion or responsive pleading. Insufficient service of process under Rule 12(b)(5) is a waivable defense, not a jurisdictional challenge. Here, the defendant knew about the service defect but filed a Rule 12(b)(6) motion without mentioning it. Because that was the first Rule 12 motion, the service defense was available and should have been included. By omitting it, the defendant waived that defense under Rule 12(h)(1)(A). Moreover, Rule 12(g)(2) bars a second Rule 12 motion raising a defense that could have been raised in the first one. So the district court should deny the second motion. The "nonwaivable defense" choice is wrong because insufficient service is waivable and specifically subject to Rule 12 waiver. The "earlier motion was limited to failure to state a claim" choice is wrong because Rule 12 does not allow piecemeal raising of defenses — the first motion triggers consolidation. The "waived only if omitted from a responsive pleading" choice gets the rule backwards: omission from an earlier Rule 12 motion also waives it. Study tip: memorize the short list of waivable Rule 12 defenses — lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process — and remember they all must appear in the party's first Rule 12 motion or responsive pleading.

Question 3

A plaintiff filed a federal complaint and served it on the defendant on April 1. On April 20, the defendant timely filed a motion to dismiss under Rule 12(b)(6). The court denied the motion, and on Monday, June 1, the clerk served the notice of the order on the parties by first-class mail. The court did not set a different time for the answer.

Under the Federal Rules of Civil Procedure, what is the last day on which the defendant may serve its answer?

June 18 (correct answer)
June 15
June 22
April 22

Explanation: Under Rule 12(a)(4)(A), when a Rule 12(b)(6) motion is denied and the court does not set a different time, the responsive pleading must be served within 14 days after notice of the court's action. Because the clerk served the notice by first-class mail, Rule 6(d) adds 3 days to the 14-day period. June 1 plus 14 days is June 15, plus 3 days is June 18. B ignores the mail extension; C uses the 21-day answer period rather than the 14-day post-denial period; D ignores the effect of the motion entirely.

Question 4

A plaintiff's federal complaint alleged only that 'defendant negligently caused a collision involving the plaintiff, and that negligence proximately caused the plaintiff's injuries and damages.' It identified no specific acts, omissions, or circumstances. The defendant moved under Rule 12(b)(6) to dismiss.

How should the court rule on the defendant's motion?

Grant the motion, because the complaint's allegations are conclusory and do not provide enough factual content to make the claim plausible. (correct answer)
Deny the motion, because a court must accept the complaint's factual allegations as true on a Rule 12(b)(6) motion.
Deny the motion, because negligence claims are not subject to dismissal under Rule 12(b)(6).
Grant the motion, because the plaintiff failed to plead the exact speed, braking distance, and point of impact.

Explanation: Under Rule 8 and Twombly/Iqbal, a complaint must contain enough factual content to make the claim plausible, and conclusory recitals of elements are not entitled to the presumption of truth. The complaint here merely parrots the negligence standard without describing any conduct. Dismissal under Rule 12(b)(6) is proper. B is wrong because there are no well-pleaded facts to accept as true; C is wrong because negligence claims can be dismissed; D is wrong because Rule 8 does not require such detailed factual pleading.

Question 5

In a federal action, the defendant served its answer on the plaintiff on May 1. On May 26, the plaintiff filed a motion under Rule 12(f) to strike several allegations from the answer as scandalous and immaterial. The 21st day after May 1 was May 22.

Is the plaintiff's motion timely under the Federal Rules of Civil Procedure?

No, because a motion to strike must be filed within 21 days after service of the pleading. (correct answer)
Yes, because a motion to strike may be filed at any time before trial.
No, because a motion to strike must be filed within 14 days after service of the pleading.
Yes, because the 21-day period runs from the filing of the pleading rather than its service.

Explanation: A motion to strike under Rule 12(f) must be made within 21 days after being served with the pleading; the court may act on its own at any time, but a party's motion is late here. Because the 21st day was May 22 and the plaintiff moved on May 26, the motion is untimely. B incorrectly describes the party's deadline; C uses the wrong number of days; D incorrectly looks to the filing date rather than service.

Question 6

After the defendant filed an answer in a federal breach-of-contract action, the plaintiff moved under Rule 12(c) for judgment on the pleadings. In support of its motion, the plaintiff attached an affidavit from its CFO describing the parties' course of dealing. The defendant opposed the motion.

How should the court handle the plaintiff's motion?

It may not consider the affidavit, because Rule 12(c) motions are decided only on the pleadings.
It should treat the motion as one for summary judgment if it does not exclude the affidavit. (correct answer)
It should treat the motion as one for summary judgment only if the defendant also submits evidence.
It should disregard the affidavit, because only a defendant may introduce matters outside the pleadings on a Rule 12(c) motion.

Explanation: Rule 12(d) applies to Rule 12(c) motions: if matters outside the pleadings are presented to the court and not excluded, the motion must be treated as one for summary judgment, with all parties given a reasonable opportunity to present pertinent material. Because the plaintiff attached an affidavit, the court must either exclude it or convert the motion. B is therefore correct. A is too absolute; C incorrectly adds a condition not in the rule; D is wrong because either party may submit matters outside the pleadings.

Question 7

After being served with a federal complaint, the defendant filed a motion to dismiss under Rule 12(b)(6), arguing that the complaint failed to state a claim. The motion did not assert lack of personal jurisdiction. The court denied the motion. In its subsequently filed answer, the defendant asserted lack of personal jurisdiction as a defense and asked the court to dismiss on that ground.

Should the court consider the personal jurisdiction defense?

No, because the defense was available when the defendant filed its first Rule 12 motion and was omitted. (correct answer)
No, because a Rule 12(b)(2) defense may not be combined with a Rule 12(b)(6) motion.
Yes, because lack of personal jurisdiction may be raised at any time before trial.
Yes, because the denial of a Rule 12(b)(6) motion leaves all other Rule 12 defenses available.

Explanation: Under Rules 12(g)(2) and 12(h)(1)(A), a defendant that makes a Rule 12 motion waives any defense listed in Rule 12(b)(2)-(5) that was available when the motion was made but omitted from it. Lack of personal jurisdiction is such a defense. The court should not consider it. B is wrong because Rule 12(g)(1) expressly allows defenses to be joined in one motion; C is wrong because personal jurisdiction is waivable; D is wrong because a denied Rule 12(b)(6) motion does not keep other defenses alive.

Question 8

In a federal suit for breach of a written contract, the plaintiff attached the contract to the complaint. The complaint alleged that the contract required delivery of the goods by March 1 and that the defendant failed to deliver by that date. The attached contract stated that delivery was required by June 1. The defendant moved to dismiss under Rule 12(b)(6).

How should the court rule on the motion?

Grant it, because the attached contract controls over the complaint's contrary allegation and shows the delivery date was June 1. (correct answer)
Deny it, because the court must accept the complaint's well-pleaded factual allegations as true.
Deny it, because attached documents may not be considered on a Rule 12(b)(6) motion.
Grant it, because the complaint failed to attach a signed copy of the entire contract.

Explanation: When you see a Rule 12(b)(6) motion, remember that the court generally accepts the complaint's factual allegations as true, but it may also consider documents attached to the complaint. Those attached exhibits are part of the pleadings. Here, the contract is attached, and it directly contradicts the complaint's allegation that delivery was due March 1; the contract says June 1. When an attached exhibit contradicts the complaint, the exhibit controls. So the plaintiff has failed to state a plausible claim for breach based on a missed March 1 deadline — the court should grant dismissal. The choice saying the court must deny because it must accept well-pleaded factual allegations as true misses the key rule: an allegation contradicted by an attached document is not well-pleaded for 12(b)(6) purposes. The choice saying attached documents may not be considered is also wrong — attached exhibits and documents incorporated by reference are properly considered on a motion to dismiss. And the choice about failing to attach a signed copy of the entire contract is a trap: the contract was attached, and the absence of a signature is not the defect at issue; the defect is the inconsistency between the allegation and the contract's actual terms. Study tip: on civil procedure questions, immediately compare any attached exhibit with the complaint's allegations. If they conflict, the exhibit wins — courts will not let a plaintiff plead around the plain language of its own attachment.

Question 9

A defendant in a federal action did not file a pre-answer motion to dismiss and did not assert in its answer that the complaint failed to state a claim. At trial, after the plaintiff rested, the defendant orally moved to dismiss the action for failure to state a claim upon which relief could be granted.

Is the defendant's motion procedurally proper?

Yes, because failure to state a claim may be raised at trial even if it was not raised in a pre-answer motion or answer. (correct answer)
No, because failure to state a claim is waived if not raised in a pre-answer motion or the answer.
No, because after trial begins the only proper motion is for judgment as a matter of law under Rule 50.
Yes, but only if the defendant raised the defense in the final pretrial order.

Explanation: Whenever you see a Rule 12 timing question, separate defenses that are waived if omitted from the first response from defenses that survive later. Failure to state a claim under Rule 12(b)(6) is in the second group: Rule 12(h)(2) expressly allows it to be raised in a pleading, by motion for judgment on the pleadings, or at trial. So the defendant's oral motion after the plaintiff rested was procedurally proper. Because the motion was made during trial, an oral motion is also permitted under Rule 7(b)(1). The "waived if not raised in a pre-answer motion or answer" answer is wrong because it confuses 12(b)(6) with defenses like lack of personal jurisdiction, improper venue, or insufficient service of process, which are waived under Rule 12(h)(1) if omitted from the first responsive filing. The "after trial begins the only proper motion is judgment as a matter of law" answer is too narrow; JMOL is one tool, but Rule 12(h)(2) specifically preserves the failure-to-state-claim challenge at trial. The "only if raised in the final pretrial order" answer is also wrong: a pretrial order can narrow issues, but it is not an additional prerequisite for this defense. Study tip: memorize the three waiver categories—defenses lost if not raised early, defenses allowed through trial, and subject-matter jurisdiction, which can never be waived.

Question 10

A defendant was served with a federal complaint and filed an answer denying liability. The answer did not assert that the complaint failed to state a claim. Three weeks after filing the answer, the defendant filed a motion labeled "Motion to Dismiss Under Rule 12(b)(6)," arguing that the complaint failed to state a claim upon which relief could be granted.

How should the court treat the defendant's motion?

Treat it as a motion for judgment on the pleadings under Rule 12(c). (correct answer)
Treat it as a timely Rule 12(b)(6) motion because the defense was not waived.
Deny it as untimely because Rule 12(b)(6) motions must be made before the answer is filed.
Strike it because failure to state a claim is waived when omitted from the answer.

Explanation: A Rule 12(b)(6) motion must be made before pleading if a responsive pleading is allowed. Once the defendant has answered, failure to state a claim is not waived; Rule 12(h)(2) permits it to be raised by a motion for judgment on the pleadings under Rule 12(c). The court should therefore treat the mislabeled motion as a Rule 12(c) motion. B is wrong because a post-answer 12(b)(6) motion is not the proper vehicle; C is wrong because the defense is preserved; D is wrong because omission from the answer does not waive this defense.

Question 11

A plaintiff who is a citizen of Delaware sued a defendant who is also a citizen of Delaware in federal court, asserting diversity of citizenship and seeking $500,000. The defendant answered and did not raise lack of subject matter jurisdiction. After a jury returned a verdict for the plaintiff, the defendant moved to dismiss the action for lack of subject matter jurisdiction.

What should the court do?

Grant the motion, because subject matter jurisdiction may be raised at any time and the court must dismiss if jurisdiction is lacking. (correct answer)
Deny the motion, because the defendant waived the defense by not raising it in its answer or before trial.
Deny the motion, because the verdict finally resolved the parties' dispute and the parties consented to jurisdiction.
Grant the motion only if the defendant shows excusable neglect for failing to raise the defense earlier.

Explanation: Subject matter jurisdiction can never be conferred by consent, waiver, or verdict. Rule 12(h)(3) requires the court to dismiss the action whenever it determines that subject matter jurisdiction is lacking. Here the parties are both Delaware citizens, so complete diversity is absent and no federal question is alleged. A is correct. B and C are wrong because the defect is not waivable; D is wrong because no showing of excusable neglect is needed or relevant.

Question 12

An insured sued her insurer in federal court for breach of a commercial fire insurance policy. The complaint alleged that the policy covered her warehouse, quoted the policy's coverage provision, and alleged that the insurer refused to pay after a fire destroyed the warehouse. The complaint did not attach the policy. The insurer moved to dismiss under Rule 12(b)(6) and attached the policy, whose authenticity the insured did not dispute. The policy's definition of covered property was set out in a rider that expressly excluded the warehouse at 456 Oak Street. The district court considered the policy, concluded that the warehouse was not covered, and dismissed. The insured appealed, arguing that the court improperly relied on materials outside the complaint.

Should the court of appeals affirm the dismissal?

Yes, because a defendant may support a Rule 12(b)(6) motion with any evidence, including affidavits and documents, showing that the plaintiff cannot prevail on the claim as alleged.
Yes, because the policy was central to the insured's claim and was incorporated by reference, so the district court could consider it on the motion without converting it into a summary judgment motion. (correct answer)
No, because a district court may not consider a document not attached to the complaint when deciding a Rule 12(b)(6) motion, even if the complaint quotes from it.
No, because the district court was required to treat the motion as one for summary judgment and give the insured a reasonable opportunity to submit opposing materials before dismissing.

Explanation: Whenever you see a Rule 12(b)(6) motion where the judge looks at a document not attached to the complaint, your immediate question should be: was that document incorporated by reference? This question tests the narrow exception to the general rule that a court may only consider the pleadings. Here, the policy is central to the insured's claim—she sued for breach of it and quoted its coverage provision. The insurer attached the authentic policy, and the insured doesn't dispute its authenticity. Because the policy is integral to the complaint and referenced therein, the court may consider it on a 12(b)(6) motion without converting it to a summary judgment motion. Therefore, the dismissal is proper, and the court of appeals should affirm. Now, the distractors. The choice stating a defendant may support a 12(b)(6) motion with "any evidence, including affidavits" is too broad—Rule 12(d) requires conversion to summary judgment if the court relies on materials outside the pleadings that are not incorporated by reference. The choice saying a court "may not consider a document not attached" ignores the incorporation-by-reference doctrine you just applied. Finally, the choice that the court "was required to treat the motion as one for summary judgment" is wrong because no conversion is required when the document is central and incorporated; the insured had no right to discovery or opposing materials here. Your study tip: on the bar exam, when you see a 12(b)(6) motion with an attached exhibit, ask three things: (1) is it central to the claim? (2) is it authentic? (3) does the complaint reference it? If yes to all, the judge can use it to dismiss without converting the motion.