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Author Topic: Motion to Dismiss - Federal  (Read 5425 times)

lawzombie

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Motion to Dismiss - Federal
« on: September 14, 2007, 12:01:07 PM »
Does anyone know where I can find an example of a federal Motion to Dimiss?  I really just need a template and can't seem to find one.  More specifically a 12(b)(6) motion.  Thanks!

nocomply

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Re: Motion to Dismiss - Federal
« Reply #1 on: September 14, 2007, 04:42:31 PM »
I'm sure there are examples in your casebook.  If not read an Emmanuels or whatever review books available.  12(b)(6) is failure to state a claim upon which relief can be granted.  In other words, it's failure to state a cause of action.  An example (off the top of my head) would be A sues B for battery.  In his complaint, A must allege that B satisfied all the elements of battery - that B had intent to cause harmful or offensive contact, and that harmful or offensive contact happened as a proximate cause of B's actions.  Lets say A doesn't allege that B intended to cause a harmful or offensive contact.  B can make a 12(b)(6) motion, for failure to make a claim upon which relief can be granted.  It a legal defense, not one based on factual allegations.

This is a very basic example, and if my example is poor (for anyone else reading this), please correct it (for the guy who posed the question, and for my own knowledge).  I'm a 1L too. 

 

lawzombie

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Re: Motion to Dismiss - Federal
« Reply #2 on: September 14, 2007, 04:59:16 PM »
I guess I wasn't clear in my first post.  There isn't an example in our text book.  I know what a 12(b)(6) motion is, I just need to know the format in which the argument is presented.

Mr. Roe

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Re: Motion to Dismiss - Federal
« Reply #3 on: September 14, 2007, 05:12:44 PM »
I guess I wasn't clear in my first post.  There isn't an example in our text book.  I know what a 12(b)(6) motion is, I just need to know the format in which the argument is presented.

What is that even supposed to mean?

jd06

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Re: Motion to Dismiss - Federal
« Reply #4 on: September 14, 2007, 05:44:29 PM »
I think OP's looking for format.  In the real world, assuming there's no pre-printed form for the motion (like we often use in a state court motion), the motion would be done on pleading paper w/ proper heading. 

The first paragraph might be headed something like "Motion to Dismiss for Failure to State a Claim" (all caps) and would let the Court know what you're doing, i.e. that you're moving to dismiss the matter for failure to state a claim upon which relief can be granted purusuant to the relevant federal statute.  "Defendant, xxxx, hereby moves to dismiss the matter filed in this Court on xxxx, 2007, case no. xxxx, by Plaintiff, xxxx, on the ground that Plaintiff has failed to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6)."

The following paragraphs might be headed "Facts" and would set forth the relevant facts, i.e. Plaintiff's allegations, the elements of the cause of action, what elements are not alleged, etc.   

The next paragraphs would likely be headed "Points and Authorities." Here you would analyze those facts in light of the relevant statutory (FRCP) and case law. This is where you tell the Court "why" the claim fails. "Even if every allegation in Plaintiff's pleading is true, the Court cannot grant the relief Plaintiff seeks..."   

The final paragraph would likely be headed "Conclusion," e.g. "For all the above reasons, Defendant respectfully requests that the Court dismiss...."

Attached to the motion as an exhibit, "attached hereto and incorporated by reference herein," would likely be copies of Plaintiff's moving papers (for ease of reference). 

The attorney signs and dates at the end.  "Respectfully submitted this xx day of September, 2007..." (Not under penalty of perjury because he's not testifying.) 

Anyway, hope that helps a little. Sounds like a bit much for a 1L civ pro assignment....


lawzombie

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Re: Motion to Dismiss - Federal
« Reply #5 on: September 14, 2007, 05:48:20 PM »
Thanks, that is exactly what I needed.  We have 2 semesters of civ pro, and this is for second semester.  And I agree, it is a bit much.  But writing the MTD is better than having to write the complaint like others in my class did.

conrad42

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Re: Motion to Dismiss - Federal
« Reply #6 on: September 15, 2007, 09:46:07 AM »
Does anyone know where I can find an example of a federal Motion to Dimiss?  I really just need a template and can't seem to find one.  More specifically a 12(b)(6) motion.  Thanks!

Look at Form 19 in The Federal Rules of Civil Procedure. At the end of the Rules are about 35 different forms which are examples of what different complaints, answers, motions, etc. might look like. Since these forms are actually part of the rules, they are what you should be using as a model.

Per Rule 84: "the forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate."

Lenny

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Re: Motion to Dismiss - Federal
« Reply #7 on: September 15, 2007, 10:42:39 AM »
A typical memo in support of a 12b6 motion to dismiss will have the introductory paragraph that sayd basically "Defenedant moves to dismiss Counts _, _, and _ of the Complaint for failure to state a claim.  Specifically, Count _ fails to allege scienter, Count _ fails to plead ___, etc., etc." 

Then, the second section should be "Legal Standards" - this is just the typical pablum about the legal standards for a 12b6 motion.  You can get it from any district court opinion on a motion to dismiss in your jurisdiction.  Really, just cut and paste - it should be about 2 pages double spaced.  The most important part of this is that you construe all facts and inferences in the light most favorable to plaintiff. 

The third section should be a BRIEF recitation of the facts - 12b6 is about law, not facts, so this section is truly just to educate the Court about the case, not to advance the ball in your particular direction.  So just give the basic "here's what this case is about."  A good first sentence is something like "Taken in a light most favorable to plaintiff, the facts that give rise to this case are as follows."  Then just give the uncontroverted facts - don't spin them or add any embellishment.  Don't use words like "negligently" or "intentionally" or anything loaded.

The fourth section is the real meat - the reasons why their complaint fails regardless of the facts.  Break each argument or issue up into subsections, first by Count, and then by argument within each Count if there are multiple reasons that, in your esteemed judgment, Count 1 fails.  This is where you're going to cite to all the substantive caselaw and authority.

Then, the final section is just the conclusory "for the reasons set forth above, I win" stuff.   

wardwilliams

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Re: Motion to Dismiss - Federal
« Reply #8 on: September 15, 2007, 10:48:08 AM »
Hannah Dunlap Forms on West or Lexis

mdwilliams81

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Re: Motion to Dismiss - Federal
« Reply #9 on: August 13, 2010, 01:09:55 AM »
Here is a source:  http://www.uscourts.gov/RulesAndPolicies/FederalRulemaking/RulesAndForms/IllustrativeCivilRulesForms.aspx

Also if you want a completed guideline try this one, it was done for male private part Chaney:  http://upload.wikimedia.org/wikipedia/commons/2/26/Defendant_Cheney%27s_motion_to_dismiss.pdf

Hope this helps!
Mike