4.3 Motions to Dismiss

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2018 Ed.)

4.3 MOTIONS TO DISMISS ¹⁰³

4.301 Scope of Fed. R. Civ. P. 12(b). Fed. R. Civ. P. 12(b) provides that a motion may assert the following defenses.

A. Lack of Subject-Matter Jurisdiction. ¹⁰⁴ This defense challenges the jurisdiction of the court to adjudicate the controversy presented. As stated under Fed. R. Civ. P. 12(h)(3), this defense is never waived. ¹⁰⁵

B. Lack of Personal Jurisdiction. 106 This defense challenges whether or not the court can exercise its authority over a particular defendant and can be waived if not asserted timely. ¹⁰⁷

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C. Improper venue. ¹⁰⁸ A party may move to dismiss an action on the basis of improper venue. ¹⁰⁹ This is to be distinguished from a motion to transfer venue pursuant to 28 U.S.C. § 1404(a). However, in considering dismissal due to improper venue, the court may "in the interest of justice" transfer a case to any district or division in which the action could have been brought. ¹¹⁰ An objection to the propriety of the venue must be made in a timely manner or it is waived. ¹¹¹

Before the Supreme Court decision in Atlantic Marine Construction Co. v. United States District Court for Western District of Texas, ¹¹² courts would analyze the assertion of a forum selection clause under Fed. R. Civ. P. 12(b)(3). ¹¹³ After the Atlantic Marine decision, however, the appropriate vehicle to enforce a valid forum selection clause is either (i) a motion to transfer pursuant to 28 U.S.C. § 1404(a), where the clause points to a particular federal district, or (ii) a motion to dismiss for forum non conveniens, where the clause merely points to a particular state or foreign forum. ¹¹⁴ Expounding upon this framework, the Fourth Circuit has recently clarified that the Atlantic Marine holding only applies to valid mandatory forum selection clauses, not permissive forum selection clauses. ¹¹⁵ Previously, the Fourth Circuit has also held that a forum selection clause that merely

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directs that lawsuits be filed "in [a state]" permits a state or federal venue within that state. ¹¹⁶

D. Insufficiency of Process. ¹¹⁷ This defense is used to challenge the content of the summons as set forth in Fed. R. Civ. P. 4(a) and (b). Motions under Fed. R. Civ. P. 12(b)(4) are made rarely, and the defense is waived if not made timely. ¹¹⁸ Indeed, process is not insufficient simply because the summons misnames the defendant in some insignificant way. ¹¹⁹ Further, courts have discretion to allow an amendment to the process to correct a defect. ¹²⁰

E. Insufficiency of Service of Process. ¹²¹ Motions under Fed. R. Civ. P. 12(b)(5) challenge the manner, mode, and timing of the service of the summons and complaint. This defense may be waived if not asserted timely. ¹²² If service of process is insufficient, but there is a reasonable likelihood that the defendant can be served properly, courts generally treat the motion as a motion to quash the return of service and allow the plaintiff an additional opportunity to serve the defendant. ¹²³

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When considering a motion to dismiss for insufficient process or insufficient service of process, a court may relax the requirements of Fed. R. Civ. P. 4 if the defendant receives actual notice of the pending litigation. ¹²⁴

F. Failure to State a Claim upon Which Relief Can Be Granted. ¹²⁵ This defense tests the adequacy of the averments contained in the complaint. ¹²⁶ In considering a Fed. R. Civ. P. 12(b)(6) motion, the court "must accept as true all of the factual allegations in the complaint," drawing all "reasonable inferences" in the plaintiff's favor. ¹²⁷ However, as the Supreme Court held in Ashcroft v. Iqbal, ¹²⁸ legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts for Fed. R. Civ. P. 12(b)(6) purposes. ¹²⁹ A mere allegation that the defendant violated the law is unlikely to survive a Fed. R. Civ. P. 12(b)(6) motion. ¹³⁰ Instead, the plaintiff's factual allegations must be sufficient to raise the right to relief above the speculative level. ¹³¹

1. Heightened "Plausibility" Standard. The Supreme Court heightened a plaintiff's pleading requirements in Bell Atlantic Corp. v.

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Twombly. ¹³² As articulated by the Fourth Circuit, the decision in Twombly established a regime that is "more favorable to dismissal of a complaint." ¹³³

Following Twombly and Iqbal, the Fourth Circuit has stated:

Ultimately, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Facial plausibility is established once the factual content of a complaint "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." In other words, the complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims "across the line from conceivable to plausible." Satisfying this "context-specific" test does not require "detailed factual allegations." The complaint must, however, plead sufficient facts to allow a court, drawing on "judicial experience and common sense," to infer "more than the mere possibility of misconduct." Without such "heft" the plaintiff's claims cannot establish a valid entitlement to relief, as facts that are "merely consistent with a defendant's liability," fail to nudge claims "across the line from conceivable to plausible." ¹³⁴

As such, courts now follow a two-pronged approach when reviewing a complaint facing a motion to dismiss under Fed. R. Civ. P. 12(b)(6). ¹³⁵

First, the court must identify and reject legal conclusions unsupported by factual allegations because they are not entitled to the presumption of truth. "Bare assertions" that amount to nothing more than a "formulaic recitation of the elements" do not suffice. ¹³⁶

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Second, the court must conduct a "context-specific" analysis drawing on "its judicial experience and common sense" and determine whether the allegations "plausibly suggest an entitlement to relief." The plausibility standard requires more than a showing of "a sheer possibility," and the court should be able "to draw the reasonable inference that the defendant is liable for the misconduct alleged." ¹³⁷

While pro se litigants' pleadings are held to less stringent standards, the court should not "construct full blown claims from sentence fragments" or recognize "obscure or extravagant claims defying the most concerted efforts to unravel them" when considering a Rule 12(b)(6) motion. ¹³⁸

2. Extrinsic Evidence. As a general rule, courts should not rely on extrinsic evidence in ruling on a motion to dismiss. ¹³⁹ However, "if a plaintiff explicitly relies on a document in her complaint and that document is integral to the complaint, a court may consider the document attached to a motion to dismiss so long as the plaintiff does not challenge its

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authenticity." ¹⁴⁰ Typically, courts will consider outside documents that are "quoted, relied upon, or incorporated by reference in the complaint, [and] also official public records pertinent to plaintiffs' claims," if such documents are "of unquestioned authenticity. ¹⁴¹ In the event of conflict between the bare allegations of the complaint and any exhibit attached, the exhibit prevails. ¹⁴² However, for the "exhibit -prevails rule" to apply, the court must consider the nature of the document and why the plaintiff attached it. ¹⁴³ Where the plaintiff attaches the document for purpose other than the truthfulness of the document, the rule does not apply. ¹⁴⁴

3. Treatment as a Motion for Summary Judgment. Notwithstanding documents relied upon in the complaint, if the court considers matters outside the complaint, the motion must be treated as a motion for summary judgment under Fed. R. Civ. P. 56, and all parties must be given a reasonable opportunity to present all materials pertinent to a Fed. R. Civ. P. 56 motion. ¹⁴⁵ If matters outside the pleadings are attached to a response to a Fed. R. Civ. P. 12(b)(6) motion, the district court has discretion to either exclude the additional materials or treat the motion as one for summary judgment. ¹⁴⁶

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G. Failure to Join a Party Under Fed. R. Civ. P. 19. ¹⁴⁷ A motion under Fed. R. Civ. P. 12(b)(7) asserts that the plaintiff failed to join a person without whom complete relief cannot be granted (a "necessary" party) or whose interest in the dispute is such that proceeding in its absence would prejudice it or the parties before the court (an "indispensible" party). ¹⁴⁸

To determine whether a party should be joined, Rule 19 of the Federal Rules of Civil Procedure sets forth a two-step inquiry, examining: (1) whether the party is "necessary" to the action under Rule 19(a); and (2) whether the party is "indispensable" under Rule 19(b). The burden of proof rests on the party raising the defense . . . to show that the person who was not joined is needed for a just adjudication. ¹⁴⁹

4.302 Timing of Fed. R. Civ. P. 12(b) Motion. Fed. R. Civ. P. 12(b) provides that every defense to a claim for relief must be asserted in the responsive pleading, except those seven defenses that may be made by motion at the option of the pleader.

If a Fed. R. Civ. P. 12(b) motion is filed, it must be filed at the time the responsive pleading is due. ¹⁵⁰ Generally, the deadline is 21 days after service of the summons and complaint or 60 to 90 days if service has been waived pursuant to Fed. R. Civ. P. 4(d)(3). ¹⁵¹

A. Time to Serve a Responsive Pleading. Serving a motion under Fed. R. Civ. P. 12(b) alters the dates for filing a responsive pleading, unless the court sets a different time. ¹⁵² Service must be effectuated as follows:

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1.	If the court denies the motion or postpones its disposition until the trial, the responsive pleading must be served within 14 days after notice of the court's action; or
2.	If the court grants a motion for a more definite

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