VI. MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
Defendants may use Federal Rule of Civil Procedure 12(b)(6) to seek the dismissal of a complaint that fails to state an actionable claim or a complaint that on its face demonstrates a bar to recovery, such as the statute of limitations. At the motion to dismiss stage, the well-pleaded allegations in the complaint must be taken as true; the question is not whether the plaintiff will ultimately have enough evidence to prove that defendants did what the plaintiff said they did, but rather, if the plaintiff did prove it, whether that would entitle her to relief. But, as described above, the Supreme Court has recently empowered district courts to review pleadings with more scrutiny, to disregard "legal conclusions" couched as factual allegations, and to make a decision whether the factual detail makes it "plausible" that what plaintiffs claim happened actually happened.
A motion under Rule 12(b)(6) to dismiss a complaint must be made before the responsive pleading—the answer to the complaint.108 Once the answer has been filed, the defendant may move at any time under Rule 12(c) for judgment on the pleadings—so long as it is "early enough not to delay trial."109 Motions under Rule 12(c) use the exact same standard as motions to dismiss under Rule 12(b)(6); the only difference is that a Rule 12(c) motion considers both pleadings—the complaint and the answer— while a Rule 12(b)(6) motion considers only the complaint.
With very narrow exceptions (e.g., for documents such as a contract considered incorporated into a complaint asserting claims under that contract), neither a Rule 12(b)(6) motion nor a Rule 12(c) motion considers evidence outside the pleadings. Significantly, the distinction between a motion to dismiss and a motion for summary judgment does not depend on what title is used for the motion. Rather, it hinges on whether the court considers materials outside the pleadings in ruling on it.110 If either party submits materials outside the pleadings and the court considers them, the motion must be treated as one for summary judgment. Parties should be careful not to inadvertently permit a motion to dismiss to be converted into one for summary judgment, particularly at the outset of a case, when neither side might have the evidence necessary to adequately address a summary judgment motion. See Part VIII, infra, for a discussion of summary judgment motions in the § 1983 context.
A. Motions to Dismiss, Immunity, and Discovery
One of the most commonly asserted grounds for a motion to dismiss in a § 1983 suit is that the defendant is entitled to immunity. This could be absolute immunity, which protects prosecutors and judges in most circumstances. Or it could be qualified immunity, which protects any individual governmental defendant who is not violating a clearly established constitutional right: "all but the plainly incompetent or those who knowingly violate the law."111 Both absolute and qualified immunities are intended to provide immunity from suit, not...
