12(b)(6) in Practice

This episode is a tutorial about the practical application of a 12(b)(6) motion to dismiss for failure to state a claim. I focus on the three types of circumstances when courts grant 12(b)(6) motions and offer strategies about how to analyze and argue these motions in practice or on an exam.

Transcript

Speaker 1: 0:12

Welcome to the civil procedure podcast. I'm your host Thomas Maine. This is the episode about the 12, B six motion to dismiss for failure or to state a claim where we focus on its practical application. Give me 55, 0 minutes, and I can give you what you need to know about the 12[inaudible] that will include a break somewhere roughly in the middle 32nd break. So that allows you to plan accordingly. So let's get started. The 12[inaudible] motion is one of the most important motions in all of litigation. So it is important that we master it. And I think the best way to master it is to let me do the work for you of reading hundreds of cases, where courts grant 12[inaudible] motions and conveying to you. The three categories of circumstances when courts 12, B six S master these three categories, and you are ready for a 12 B six question on an exam, or in practice, these three categories are not in the rules. They're not articulated in 12, B six, nor do they appear in depleting rule of federal rule eight, a two. Rather these three categories are just our technique. Our trick to make sure that you look at the 12, B six from the three different angles that can lead to courts granting the 12 B six. So this is our terminology, these three categories to make sure we don't overlook anything. The first angle, the first category regards the legal sufficiency of the plaintiff's complaint. What we mean by legal sufficiency is that the plaintiff's cause of action is recognized as a legal theory that is deserve of a remedy. Our fancy word for this is cogni ability and examples of cognizable claims, examples of legal theories that are deemed as worthy of a remedy are things like negligence, breach of contract trespas new employment discrimination. These are cognizable claims, but category one is here because sometimes plaintiffs will bring causes of action that are not cognizable. Indeed. They're all sorts of situations where somebody is offended or damaged or outraged or annoyed, and they wanna bring a lawsuit. But their legal theory is not something that the law recognizes. I'm deeply offended by the fact that this local restaurant is supporting a candidate or a political cause that I find disgusting. Is there anything you can do about that? Well, your legal theory that you are offended, disgusted, annoyed. If you can't put it into one of the legal theories that are recognized, your cause of action is not cognizable. A plaintiff who is trying to bring a cause of action that their client has a right to affordable housing. Well, if you can't point to some constitutional, right, some statutory, right? Some common law, right? To a affordable housing that cause of action is not cognizable. Wanna bring a claim for educational malpractice is educational malpractice, a cause of action. These are questions of cogn ability. And if the plaintiff's cause of action into something that is recognized, 12[inaudible] is how courts get rid of them. That's what category one is all about. And essentially it's just two simple steps. We need to figure out what the cause of action is at step one, and then step two, confirm or discuss whether or not this is a cause of action that is recognized in the jurisdiction. If it isn't recognized 12[inaudible] is the basis. And category one is our particular flavor of that. 12 B six. And so now we're ready for category two, our second kind of circum, where courts grant 12 B6 motions and this category or flavor, or the perspective that we take when looking at a complaint under this particular approach is to focus on the factual sufficiency. So, whereas category one was about the legal sufficiency category. Two is out the factual sufficiency, which just means does the plaintiff have enough factual detail in their complaint to justify the court, allowing this case to proceed beyond the 12 B6 stage, imagine a complaint for employment discrimination, where a plaintiff is suing employer. And the complaint says only defendant is liable to me in the amount of$125,000 for employment discrimination, full stop. The end that complaint could survive a category. One challenge under 12[inaudible] because it states a cause of action employment discrimination. That surely is a cognizable claim in the jurisdiction because every jurisdiction has employment discrimination protections, but there could be a problem under this category two, because category two is demanding a certain factual presentation by the plaintiff telling us some of the facts underlying their claim. And this plaintiff has given us essentially no facts. What job were you applying for that you didn't receive? What job do you have now? When did you apply? What were you told? What were the circumstances? What are your qualifications who was involved, who made the decision, who got the job that you didn't, these are all facts that aren't in the plaintiff's complaint. And in circumstances like this, where the plaintiff gives no factual support, 12[inaudible] is certainly here to step in and say, oh no, we're gonna dismiss this complaint for lack of factual specificity. But situations like that hypothetical are really too easy. It's easy when the plaintiff includes no facts for the court ran the 12 B6 under category two. What we're more likely to see in practice or on an exam are circumstances where the plaintiffs give some facts because then the fight is about, well, how many facts do they need to include? And here we have a fundamental problem of simply trying describe the standard by which plaintiffs are gonna be measured. How much detail must they include? It's very difficult to come up with a standard that you could put into a rule that would give clarity on this question of how much specificity is necessary and will what happened in the drafting of the federal rules of civil procedure is that the drafters in federal rule eight, a two said we require a short and plain statement showing that the pleater is entitled to relief. That standard sort of sends mixed messages where the first TAF short and plain statement sounds pretty generous and forgiving short. It doesn't have to be long, plain. It doesn't need to be complex or adorned with legal ease statement. It doesn't need to be an argument. Doesn't need to be a presentation, just stay where it hurts. That's generous, forgiving short, plain statement, but the latter half of eight a says that that shortened plain statement must show that the pleater is entitled to relief. And so focusing on the latter half of eight, a two, one can confined argument, well, you're supposed to show something. There is some demanding standard here. You can't just say something, you need to show it and you need to show what that you're entitled to something. So that entitlement would suggest that you need to demonstrate in your complaint with sufficient specificity that somebody can say, yeah, this looks like the kind of plaintiff who is going to be entitled to the relief that they seek. So rule eight, a two sends these mixed messages, but that fundamental problem of dis describing how much specificity is required. Well, of course that's gonna play out very differently, judge, by judge on a case by case basis, because cases are so different circumstances are so varied. There's so many different causes of action. And so it's going to be difficult to dis drive a standard. And it's certainly gonna be difficult as a advocate in practice or as a law student on an exam to know with certainty, whether something is or isn't sufficiently factually specific. So rather than spending any time, trying to figure out exactly where the line is between specific enough and not specific enough, we're never gonna know that line. And it's gonna vary from judge to judge better to spend our time mastering arguments on each side, knowing the tools for arguing that something is sufficient or the tools for arguing that something isn't sufficiently. The first of these tools is that defendants will tend to break the cause of action into its respective elements. They will try to do a category two analysis on an element by element basis. So if a particular cause of action has four elements as a defendant, that it gives me four different opportunities to argue that there is some defect in the specificity of the plaintiff's complaint. And because courts are generally receptive to that approach, we need to be ready as plaintiffs to do that kind of an argument with respect to challenges, to the factual sufficiency of our complaint. Naturally, this means that we need to be very comfortable with the elements of whatever substantive law is at issue. When we're doing our 12[inaudible] analysis, we can't do a good analysis here under this category, two 12[inaudible] without knowing what the elements of the relevant cause of a action are. So on an exam, if I wanted to test 12 B6, well, it would be a 12 B6 as to a particular cause of action in some hypothetical complaint. And I would have to tell you what the elements of that cause of action were in order for you to do that 12 B6 analysis. So let's imagine for example, that it's a complaint for we'll stick with that employment discrimination claim that we discussed in the context of category one, we could imagine here that the elements of the cause of action for employment discrimination under the federal statute called title seven. Let's imagine that those elements are well, let's just get a couple of'em on the table. The first one would be that the plaintiff is a member of the protected class title VII protects discrimination on the basis of gender, race, ethnicity, national origin, and so forth. And the element number one is that the plaintiff has to be a member of one of those classes. Element. Number two, I could tell you on the exam would be that the plaintiff had to be qualified for the position to which they applied. So if this is discrimination in the employment context, the idea here under element number two is that the plaintiff has to demonstrate that they were qualified for the position that they were applying for, what lawyers and judges would do in practice. And what law students should do on an exam is literally take each element one by one and find the allegations in the com plaintiff, that correspond to that element. So if element number one is that that plaintiff was a member of the protected class. What are the allegations in the plaintiff's complaint that correspond to that element? And with respect to the second element, the idea that the plaintiff was qualifi for the position to which they applied, what are the allegations in the complaint where the plaintiff is speaking to the fact that they were qualified for the position to which they applied? The only sophisticated analysis here is to proceed element by element with an obsessive matching of the allegations in the complaint to each of those elements. Now, 10 minutes ago, I said that there's this fundamental problem in category two 12.[inaudible] where it's difficult for us impossible for us to articulate with any clarity, what the standard of specificity demanded of is well, appreciate that all we've done by separating it into element by element analysis, as we've multiplied that fundamental problem by whatever number of elements there are in the cause of action, cuz by dividing it element by element, what we haven't answered, what the standard of specificity is, we've just now created there four elements. Well now we've got four battlefield, but we still don't know how to resolve those fights about exactly how specific the allegations need to be. So we need still more tools and that's why I'm here to help plaintiffs have a good tool in their tool, a box. And that tool is to say that we have included in our complaint, all of the factual details that are known or are reasonably available to us now, a plaintiff who isn't including all of the factual details that are known to them. And that might be for strategic reasons that a plaintiff might not wanna put all of their details in their complaint, but for plaintiffs who have put essentially all of the factual detail known to them in their complaint, this is a strong argument, they're in a sympathetic position. And so it's a good argument to make that we've included all of the details that we could. We're not holding anything back here. And remember where we are in the course of litigation, this lawsuit is just getting started. We're gonna be litigating this cause of action for months or maybe even years. And we're gonna be finding out all sorts of additional details. The issue at the 12[inaudible] stage is just whether the case is going to proceed to those later stages. So if we have included all of the facts that are known to us or that were reasonably available to us, we're in a sympathetic position and plaintiffs will make that argument. That is a tool in your toolbox. Now appreciate that. That's not necessarily a winning argument. That's not the pleading standard. We could certainly imagine an alternative universe where that is the pleading standard plaintiffs need to include all factual detail known to them or reasonably available to that could be a pleading standard. That isn't our pleading standard. However, but it is a tool in your toolbox and tools in the toolbox are the best we can do. We are, are going to put some clear rule that we simply need to memorize in our toolbox to answer questions about factual specificity of a complaint. Rather the best we can do is to understand the arguments that plaintiffs and defendants will make in these contexts. So let's put a tool in the defendant's toolbox defendants argue that the plaintiff's complaint, lacks specificity, and this is an argument we make, no matter how specific the plaintiff's complaint is when they don't include enough details about the, what happened. We whine about that. If they include lots of the what, well, then we whine about the who. And if they include a lot of detail about the who, then we focus our attention on, well, it's not clear when these particular things occurred and if they include all of that, then we might focus on the why any story could always have more detail. And so defendants will simply identify those parts of the story. A that are missing details. That's the tool case law gives judges a couple of mandates that they need to use in resolving disputes about the factual sufficiency of a complaint. And so we as lawyers or as law students can anticipate those mandates that judges are going to use in resolving these fights about the sufficiency of the complaint. So let's talk about each of these two mandates. These important concepts that judges will use is when resolving these category two 12 B6 problems. The first one involves the word conclusory judges are told by Supreme court precedent that they are to ignore conclusory allegations in a complaint. And that's important for us because if something gets the label conclusory, it is, and you could think of this literally or figuratively, it gets crossed out of the complaint. It is to be disregarded by the judge. So imagine if everything got crossed out, if everything got crossed out well, then there's nothing left. And so certainly the 12[inaudible] is gonna be granted under those circumstances. Well, the idea as defense counsel is to get as many things crossed out as possible. And the idea that conclusory allegations will be crossed out means that this is an important concept to master because judges are under a mandate to disregard conclusory allegations. So what is a conclusory allegation? We're gonna start from the easiest situation where a court says that's a conclusory allegation. And the easiest example of that is when somebody in a complaint merely recites the element, you can't get past a 12[inaudible] challenge by putting in your complaint. The words of the elements of the cause of action. So imagine in our title, seven complaint, plaintiff says paragraph one, I'm a member of the protected class, because remember that was element number one and paragraph two of their complaint, they could say the plaintiff was qualified for the position to which they applied. If the plaintiff did that for each element, the idea would be well, facially, you might say one might say that well they've addressed each of the elements. Maybe this case survives a 12 B6. Well, it might survive a 12 B6 if judges were not under the mandate to cross out conclusory allegations. And the paradigmatic example of a conclusory allegation is when a plaintiff merely recites the element. So that's an example of a conclusory allegation that just hits us over the head. So if we see that on an exam or in practice where the plaintiff is merely reciting the element, we call it conclusory and we cross it out, rarely will we be so fortunate as to have an easy example like that. But before we turn to the more complicated applications, let's take that promised 32nd break. So either skip ahead to 30 seconds or rest your head. Okay. So let's continue. We're focusing on this notion of what is a conclusory allegation. And we said that it certainly conclusory if the plaintiff merely recite the elements, but now we're gonna get a little more nuanced. So focusing still on that second element of the cause of action are hypothetical title VII claim where the second element requires that the plaintiff be qualified for the position to which they applied. Imagine that rather than saying that in their complaint, imagine that the plaintiff if says something like the plaintiff's experience and skills made them a strong and capable candidate for the position, is that still conclusory on one hand, the plaintiff isn't merely reciting the element, but on the other hand, that's essentially what's going on there rather than saying that they were qualified for the position to which they applied. They just said that their experience and skills made them a strong and capable candidate for the position. They're still fundamentally saying element number two in a conclusory fashion. And what we're exploring here is the distinction between merely restating the legal conclusion, whether you use the words of the element or you consult the F sous and do fundamentally the same thing, we're trying to distinguish this idea of merely stating a legal conclusion from the alternative, which would be to alleged facts. So to highlight this distinction between legal conclusions and facts, imagine if the plaintiff put in their complaint allegations like plaintiff worked at the company for four years and maybe an that said during their four years at the company, plaintiff consistently received the highest level of review on all job reviews that were completed by their supervisor and maybe allegations about the consistently receiving of pay raises during their four years at the company. And let's imagine one more allegation where the plaintiff says other coworkers, similarly, situated to plaintiff were promoted to this managerial position after only two years of ex experience of the company. Of course, from the plaintiff's perspective. What we're trying to do here is to create this set of allegations that would correspond with the element number two, which is that the plaintiff was qualified for this position to which they applied. So considered in total, the idea of they worked for four years, these positive job reviews, these raises the idea that other similarly situated workers were promoted after just two years. The idea from the plaintiff's perspective is that those allegations established that element. Number two, that the plaintiff was qualified for the position of which they applied, because these are factual allegations rather than legal conclusions. They're not going to be crossed out if it was a legal conclusion that gets crossed out in this analysis, facts are not legal conclusions. Moreover, at the 12 B E six stage courts say that we will presume facts to be true. We'll take them, accept them as true for purposes of the 12 B6 analysis. So in considering element number two of whether the plaintiff was qualified for the position to which they applied, we'll just accept the plaintiff's allegations about their experience and their reviews and their raises. And the fact that similarly situated coworkers were promoted after two years will accept all of that as true, because these are factual allegations, but appreciate how this puts a lot of attention on able of whether something is a fact or is a legal conclusion. And so again, this is something that we need to be ready to fight about. Imagine, for example, that the allegation in the complaint is that the plaintiff was more qualified for the job than the person who received the motion. If that's a factual allegation, the court's gonna accept it is true. And it's gonna do its analysis of the sufficiency of the complaint here and will accept as true that the plaintiff was more qualified for the position than the person who received the promotion. Defendants are gonna argue. That's a legal conclusion. They're going to say that's functionally. The same thing is merely reciting the element that the plaintiff was qualified for the position to which they applied. If it gets the conclusory label, it's gonna get crossed out. Now, plaintiff could instead, or in addition to that allegation could say things like plaintiff had more years of experience than the person who received the promotion. The good news for that plaintiff is that, oh, that's a fact that that's a factual assertion. That's not gonna get crossed doubt, but the bad news is that that's not as impactful an allegation merely to say that you had more years of experience than somebody who got the job doesn't mean that you were more qualified than them for the job. And it doesn't mean that you were yourself qualified for the job. And we'll return to this broader point shortly. What we're doing right here is deciding which allegations get crossed out and we're crossing out legal conclusions and we're not crossing out facts shortly here we'll deal with what we do with what's left after we've done these crossouts. But before we go there, we need to address one more possibility. And that is plaintiffs who allege facts that are just so dubious that we can't accept them as true. The easiest way to illustrate this would be with it's silly examples. What do we do with plaintiffs who allege that they saw in Armadillo riding a bicycle? What do we do with allegations that are, that are factual allegations, but it just could not possibly be true. My advice is to invoke the court's language, where they discuss crossing out, bear assertions, bald allegations, the idea that some allegations are just facially preposterous. Once you open up this category, what gets tricky and controversial is what is one person's preposterous couldn't possibly be true? Alleg is another person's lived experience an allegation that a police officer acted in a particular manner or that the attorney general of the United States ordered some particular policy. Well, a judge might well see that as an Armadillo, riding a bicycle. That's not how police officers act that couldn't possibly be what the attorney general did. And once we start crossing out allegations as being bald assertions or bear allegations, what we're doing is crossing out allegations. That might be an important part of what the plaintiff is assembling in their comp claim to support the elements of their cause of action. They're including all of these details because they're anticipating this category two analysis where somebody's gonna take all of the allegations and use those allegations to assess the sufficiency of detail with respect to each of the elements. Once we've crossed out all of the conclusory allegations, including not only the legal conclusions, but whatever of those facts that might be bald assertions or bear out allegations. Now we're ready to use the second mandate that judges have with respect to evaluating the sufficiency of the plaintiff's complaint. And that is the word plausibility. The first word that we were playing with was conclusory. That was the mandate to cross out conclusory stuff. Now we're turning our attention here in this second category of 12[inaudible] to the assessment of the plausibility of the plaintiff's claim. So for a plaintiff like the plaintiff in our employment discrimination hypothetical, after we've crossed out all the conclusion allegations, we're gonna have a story left that describes a plaintiff. Who'd worked at the company for this long and had this history and these job titles and this pay, this history of pay increases, and they attended such and such leadership training programs and the court in looking at the non conclusory allegations. So after everything that's conclusory has been crossed out is matching that story to the elements of the cause of action. Is it plausible that this plaintiff is telling a story that is this instance of employment discrimination that the law is trying to address? PLA is the court's standard plausible we're told is more than possible. So the plaintiff has to give us more detail. These allegations that survived our conclusory cross out exercise. These allegations have to tell a story that is more than just a that's possible that this plaintiff suffered employment discrimination. Rather the court is answering the question. Is it plausible that the plaintiff suffered employment discrimination? Because the judges are instructed to invoke common sense and their judicial experience in evaluating the plausibility of the plaintiff's claim? Well, this is where you as an advocate play a big role. When the court is looking at the non conclusory allegations in our employment discrimination plaintiff's case, does it resonate with her or him as he had the, this is, this is what an employment discrimination case. This is what it looks like. Or alternatively, after crossing out the conclusory allegations, does a judge see that, wow, this there aren't a lot of specifics here. And all I see is a complaint by a plaintiff who, yeah, they'd been at the company a while, but I don't know if this is employment discrimination on the basis of gender. What do we have here by way of specific incidents? Not much. That's a complaint where the court says, oh, well, it's possible that the plaintiff has an discrimination case, but I'm gonna dismiss here on 12[inaudible] cuz I, I just don't think this complaint rises to the level of plausible claim for employment discrimination in such arguments before judges, defendants have the strong case law and specifically defendants want to cite the wombly case because in wombly the court analyzed a complaint and said, you know what, when we read this complaint, after we've crossed out the conclusory allegations, of course, when we read this complaint, we can imagine two different scenarios. One is that all of the facts in this complaint are consistent with lawful conduct. Everything that's described here could be consistent with a story where there's nothing unlawful regarding the defendant's behavior. Now at the same time, the court says, we can see a second version of this story where yeah, this would be consistent with unlawful conduct. Yeah. This is what that cause of action is intended to address. And this, these same facts could be consistent with unlawful conduct and what the court in wombly said, what the Supreme court in TMB said was don't jump to the UN lawful inference. And so imagine with our employment discrimination, plaintiff, then telling a story of years of experience in this job history and maybe who got the job. Is there a lawful explanation for what happened and also an unlawful explanation for what happened? That's why defendants love the wombly case because more often than not, the plaintiff's non conclusory allegations will be consistent with both lawful and unlawful explanations. Plaintiffs do have a response here. Plaintiffs are gonna argue that the that's presented in their complaint is much more likely to be the story of unlawful conduct. On the part of the defendant. Plaintiffs will talk about how once they've been given the opportunity to prove all these allegations in the complaint. And especially after they've been given the opportunity to engage in additional discovery, to find out more details, to support this cause of action that when all is said and done, they will prevail on this employment discrimination claim. And that therefore the unlawful explanation is the much more likely of the two that's the plaintiff's response to the Twombly argument. But this is what category two is all about. The factual sufficiency of the plaintiff's case. Our key points here, where we do an element by element analysis, we cross out conclude allegations and we look at what's left to assess the plausibility of the plaintiff's claim. Let's go on to category three. Again, we look at each element of the cause of action separately. And again, we're looking at all of the allegations in the complaint as they regard each of those particular elements. But this time we're looking for an allegation in the complaint that negates an element of the cause of action. So imagine, for example, that an element of our employment discrimination cause of action. Imagine that an element of that claim is that the defendant must be an employer with more than 15 employees. If in, let's say paragraph 37 of the plaintiff's complaint, if the plaintiff says in her complaint that she is one of nine employees employed by the defendant, a 12[inaudible] motion would be the proper motion for the defendant to file in response to that. And we're not gonna miss circumstances like that because in category three, this is what we are looking for. We are looking for express allegations in the complaint that negate an essential element of the plaintiff's claim. So we would do a quick analysis element by element, oh, element number one was that the plaintiff was a member of the protected class. Well, is there any allegation in the complaint? It negates that if we don't have a problem there, then it's on to the next element, which was that the plaintiff was qualified for the position to which they applied. Is there any allegation in our complaint that negates that element? This is the exercise of category three importantly, how focus here is on express allegations in the complaint. Let's talk about some common mistakes here. If I tell you in the fact pattern that the defendant has a videotape that negate an essential element of the plaintiff's cause of action, is this a 12[inaudible] problem? Absolutely not. That would be dead wrong. Our focus is on express allegations in the complaint that negate an element that common mistake was defendant has evidence that negates an essential element. That's not good enough. That's a different motion. 12[inaudible] is about the face of the complaint. And here in category three, what we're trying to do is to make sure that there isn't an allegation in this complaint that negates one of the elements, another common mistake. Imagine I tell you in the fact pattern that the plaintiff has included an allegation in their complaint, but the plaintiff knows that that allegation is not true. And that allegation is an essential element of their claim and they know that that's not true. And in fact, the opposite is true and the plaintiff knows this he's at a 12[inaudible] problem. No, it isn't. That's a different motion here with category three. Our concern is whether there is an allegation in the complaint that negates one of the elements of the cause of action. That's our concern. That's the only focus of our inquiry there on category three. So we can pull all of this together now for 12 B six S generally first point I wanna make here in our concluding thoughts is we need to remember to do a 12 B six analysis on a cause of, of action by cause of action basis. If a complaint has two causes of action in it, we have two different 12[inaudible] analysis. One of the causes of action might be subject to a dismissal. And the other one might be just fine. One way that I deal with this on an exam is I might give you four causes of in the complaint, but I have a defendant moving to dismiss count two, or just moving to dismiss count four. And under those circumstances, well then you only need to do your 12[inaudible] analysis as to the cause of action that is subject to the defendant's motion. But the important takeaway here is that we to talk about dismissing a whole complaint, unless we're talking about a one count complaint, or we're talking about dismissing a complaint because this two count complaint is a circumstance worth. Neither of the two counts survives a 12[inaudible]. So cause of action by cause of action basis. The next point I want to emphasize here in conclusion is that plaintiffs need to be thinking about 12 B6. Yeah, defendants file the 12 B6 motion, but plaintiffs when drafting a complaint should be anticipating that 12 B6 and it can help you to anticipate those motions are drafting a complaint. And you're thinking about category one 12 B6, it'll make you more careful, more likely to be very precise about your legal theory of recovery. If you're anticipating category two challenge to your complaint, you'll be much more obsessive about getting facts to support each element of your cause of action. And you'll be thinking about whether these are conclusory allegations, in which case they're just gonna get crossed out or are they factual allegations that are gonna be accepted? It is true. And of course, if you're worried about category three, when you're drafting that complaint as a plaintiff's lawyer, you're gonna make sure that there's no allegation in your complaint that negates an essential element seems like that would be an unlikely happenstance, but it's a mistake that you can make if you haven't obsessively researched exactly what the elements of the cause of action are. Defense council, of course, in thinking about 12 B six S we only need to win one of these categories. One of these perspectives to get the order of dismissal that we're seeking, you don't need to win all these, any one of the three angles, any one of our three categories. It's why we come at it from multiple perspectives to make sure that we never overlook anything. That's the virtue of coming at it from three different categories, three different ways to win this motion. Finally, remember that dismissals under two 12[inaudible] if you win a 12 B6 motion, there will be a dismissal that dismissal can be an order with prejudice or without prejudice. When a dismissal order is without prejudice. That means that the plaintiff, if can get their act together and refile that case. So if it didn't state a cognizable claim, or it didn't have sufficient facts, or there was some problem where an element of the claim was negated by an allegation in the complaint, when the order of dismissal is without prejudice, the plaintiff can refile make whatever changes need to be made in light of the defect that was brought to their attention and refile it, hopefully the statute of limitations hasn't run, but the order of dismissal that is without prejudice means that there isn't a definitive resolution of the party's rights and responsibilities. By contrast, when an order of dismissal is with prejudice, this means that the case is over well, the plaintiff could appeal, but the party's rights and responsibilities have been adjudicated. The trial action is over. So that's the significance of a dismissal being with prejudice. And importantly, the dismissal is with prejudice unless the court specifically says otherwise. So our default position is that an order of dismissal under a 12[inaudible] is with prejudice only if the court says otherwise, is it not? And that concludes our episode of the 12, B six in practice. Thank you for your attention. Please consult the episode list on your podcast feed for other related episodes. You can also find related episodes listed@civilprocedure.com. Have a good day.