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Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court

by Stan Burman

Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court is the topic of this blog post.

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is fairly similar to a general demurrer that is used in California Courts.

The motion seeks to have a complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.

While motions to dismiss under Rule 12(b)(6) are often filed they are not always successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.

The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.

The Ninth Circuit Court of Appeal has ruled in a published case that a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies the circumstances constituting the fraud so that the defendant can prepare an adequate answer from the allegations.

And Courts rarely grant a dismissal of a complaint without leave to amend. In fact the Ninth Circuit Court of Appeal has ruled in a published case that dismissal of a complaint without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment.

Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss under Rule 12(b)(6) containing a memorandum of points and authorities with citations to case law and statutory authority sold by the author can use the link shown below.

Sample Opposition to Motion to Dismiss under Rule 12(b)(6) by Stan Burman on Scribd

 

Attorneys or parties that would like more information on a Federal litigation document collection containing over 50 sample documents including a sample opposition to a motion to dismiss under Rule 12(b)(6) sold by the author can use the link shown below.


http://legaldocspro.net/federal-litigation-document-package/   

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

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