Motion to Dismiss for Failure to State a Claim: Making the Motion (Federal)

Summary

This practice note discusses motions to dismiss for failure to state a claim in a federal case and covers topics such as strategy, reasons to make the motion, what the plaintiff can do to avoid a Rule 12(b)(6) attack, timing for bringing the motion, motion procedure, the "exhibit prevails" rule and other evidentiary issues, the applicable burden of persuasion, the plausibility standard, and deferral of the motion.