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Icon-UpArrow Response to Rule 12(b)(6) Motion to Dismiss

How-To: Respond to a Rule 12(b)(6) Motion to Dismiss

Background: You are litigating your case in Federal Court
Problem: The defendant moved to dismiss (under Rule 12(b)(6) Fed. R. Civ. P.)
Solution: You respond [in opposition] to the defendant's motion (with help from this guide)

I. Definitions

Dismissal Dismissal with Prejudice
usually an adjudication upon the merits that operates as a bar to future action by preventing plaintiff from making further attempts at a claim based upon the same facts.
EXAMPLE: Jorge brings a lawsuit against a company, claiming that it never refunded his money for an item he returned. The company shows the judge a check made payable to Jorge and cashed by him, with a large notation on the check that it was payment for the return of the item. Jorge then tries to make an additional claim that the company owes him more money for other reasons. The judge will usually dismiss with prejudice Jorge's claim for the refund price alone and instruct him to file a separate claim if he is seeking for more money. The "with prejudice" aspect of the court's decision means that Jorge can never again sue on the same claim unless he successfully appeals the decision.
Dismissal without Prejudice

II. Legal Citations

Rule 8(a) Fed. R. Civ. P. | General Rules of Pleading
(a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Rule 10(b) Fed. R. Civ. P. | Form of Pleadings
(b) PARAGRAPHS; SEPARATE STATEMENTS. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense.
Rule 12(b)(6) Fed. R. Civ. P. | Defenses and Objections: When and How Presented...
(b) HOW TO PRESENT DEFENSES. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(6) failure to state a claim upon which relief can be granted;
(d) RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS. If, on a motion under Rule 12(b)(6) or 12(c), 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. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
Rule 56 Fed. R. Civ. P. | Summary Judgment
(a) MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

III. Samples

# PDF Comments
1logoAdobeTBD case. USFLND. Pro Se Filing. 2022. (42 USC §1983). Rule 12(b)(6).iconPriceTag
2logoAdobeTBD case. USFLMD. Pro Se Filing. 2021. (§1981, §1985, §760 FS, EPA, Title VII). 12(b)(6).iconPriceTag
3logoAdobe✓ Motion Denied/Tolled! TBD case. USFLMD. Pro Se Filing. 2021. §1981 Case (+ §760 FS). 12(b)(6).iconPriceTag
4logoAdobe✓ Motion Denied! USNYWD. 2007. Pro Se Filing. Detailed Complaint. Compared complaint size.iconPriceTag
5logoAdobeX Motion Granted. USNYWD. 2007. Pro Se Filing. Handwritten. 12(b)(6).iconPriceTag
6logoAdobe✓ Motion Denied! USNYWD. 2007. Attorney Filing. 12(b)(6) (+12(b)(5)). iconPriceTag
7logoAdobe✓ Motion Denied! USNYWD. 2007. Attorney Filing. 12(b)(6).iconPriceTag
8logoAdobeX Motion Granted. USNYWD. 2007. Attorney Filing. 12(b)(6). Very Long. Relators.iconPriceTag
9logoAdobe± Partially Denied. USNYWD. 2007. Attorney Filing. 12(b)(6). Employment Discrimination.iconPriceTag
10logoAdobe- Undecided Motion. USNYWD. 2007. Pro Se Filing. 12(b)(6). §1983. Religious Discrimination.iconPriceTag
11logoAdobe± Partially Denied. USNYWD. 2007. Attorney Filing. 12(b)(6). §1983. Wrongful Conviction.iconPriceTag
12logoAdobe± Partially Denied. USNYWD. 2007. Pro Se Filing. 12(b)(6). §1983.iconPriceTag

IV. Templates

# Link Comments
1iconMSWordReplace all of the placeholder tags with real information (eg "[plfName]" becomes "John Doe").iconPriceTag

V. Application

VI. Quick Commentary

  • Critical Note: File this document on time!
  • Re-Read your Complaint [Before reading your Opponent's Motion to Dismiss]
    • Action Steps:
      1. Re-read your Complaint shortly before reading the Answer Brief
      2. Write down the charges/counts that you levied against the defendant
    • Benefits:
      • This will help refresh your memory [as to what the issues are]
      • This will help you identify/combat the false/immaterial statements in your opponent's motion
  • Take Notes [on your Opponent's Motion to Dismiss]
    • Action Steps:
      1. Annotate the Motion to Dismiss
      2. Mark the true statements/concessions [from the Motion]
      3. Mark the false statements [from the Motion]
      4. Mark the immaterial statements [from the Motion]
    • Benefits:
      • This will help you plan/write your Response document
  • Quote the Motion to Dismiss
    • Action Steps:
      1. Copy & Paste passages from the motion
    • Benefits:
      • Using direct quotes will help your Response attack your opponent's falsehoods/etc
  • Read all/most Citations
    • Action Steps:
      1. Copy & Paste all of the cited opinions/statutes that are in your opponent's Motion to Dismiss
      2. Google the cited opinions
        • alternatively, you can use other search engines (eg, Bing, DuckDuckGo, Yandex, etc.)
        • note: in TBD's experience, other search engines (ie, DuckDuckGo in particular) produce results that Google [sometimes] misses
      3. Important Note: If you're short on time/patience, then save the unpublished opinions for last
        • Reason 1a: they have little-to-no value (especially if your opponent has not explicitly stated that he/she/it's using them as "persuasive authority" only)
        • Reason 1b: unpublished opinions are not considered binding precedent
    • Benefits:
      • Reading the opinions will likely reveal fallacies in your opponent's arguments
        • For instance: your opponent might have misrepresented what an appellate opinion actually rendered
        • For instance: your opponent might have cited an opinion that is no longer viable (ie, overruled by subsequent decisions)
        • For instance: your opponent might have cited an opinion that actually favors your complaint
  • Highlight the Points which your Opponent Conceded
    • Action Steps:
      1. Identify the points that your opponent explicitly conceded
      2. Identify the points that your opponent implicitly conceded
          (ie, via dodging/avoiding the issue)
    • Benefits:
      • This will help you keep your Response as short as possible
      • This will give you an opportunity to reinforce the indisputability of your complaint
  • Download as many sample documents as you'd like
    • Model your language after the language that lawyers use
  • Use the free-hand template (see Part IV - above) to write your Response
  • Save the final version as a PDF file.
  • File the final version in court

VII. Additional Notes

  • Estimated Time ≈ 4-16 hours

VIII. Bibliography

IX. Conclusion

With the use of the template (as well as the samples above), you can more easily draft your Response in Opposition to Defendant's Motion to Dismiss (Federal, under Rule 12(b)(6) Fed. R. Civ. P.).


Congratulations! You're now booked up on how to respond to a 12(b)(6) motion to dismiss.

Please get the justice you deserve.


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- 1/11/24 | Anonymous User 065-***-***-138
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