..., in fact, closed-a point over which the parties quibble-we conclude that the district court could have considered such an untimely Rule 12(b)(6) pre-answer motion to dismiss as a Fed.R.Civ.P. 12(c...1996. The default against him having been expunged, Neadle filed a motion to dismiss for failure to state a claim ostensibly under Rule 12(b)(6). Patel objected, arguing, inter...alia, that Neadle's pre-answer motion to dismiss under Rule 12(b)(6) was untimely because he regarded the pleadings as closed by the answer Neadle filed, pro se, in July 1992. Patel pressed...

...Rule 41 because Norfolk's motion to dismiss and supporting affidavits constituted a motion for summary judgment under Fed.R.Civ.P. 12(b)(6). On March 14, 1996, the district court held a hearing and...upon the proper interpretation and interrelation of Rule 41(a)(l)(i) and Rule 12(b)(6). Rule 41(a)(l) provides that "an action may be dismissed by the plaintiff without order of...be treated as a motion for summary judgment under Rule 12(b)(6). Rule 12(b)(6) provides that "[i]f . . . matters outside the pleadings are presented to and not excluded by the...

...Fed.R.Civ.P. 12(g), (h). Rule 12(h) provides that a "defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . if...it is neither made by motion under this rule nor included in a responsive pleading. . . ." Id. Rule 12(g) states that "[i]f a party makes a motion under this rule but omits therefrom any defense or...and to set aside the default judgment under Fed.R.Civ.P. 55(c). In this pleading, Hayhurst asserted the defense of improper service under Rule 12(b)(5), but did not assert the defense of lack of...

...(1980). The period of limitations is an affirmative defense. Fed.R.Civ.P. 8(c)(1). We have held many times that, because complaints need not anticipate defenses, Rule 12(b)(6) is not...Squibb Co., 372 F.3d 899 (7th Cir.2004). A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted. Richards's complaint does that. It could not...properly be dismissed under Rule 12(b)(6). A plaintiff whose allegations show that there is an airtight defense has pleaded himself out of court, and the judge may dismiss the suit on the...

...particular whether an objection to service of process as untimely under Rule 4(m) may be waived under 12(h) if not made in compliance with Rule 12(g). Surprisingly, it is an issue we have not previously...that ABPS waived any challenge to the October 28 service by not raising it in the Rule 12 motion filed in Hawaii on January 17, 1997. In that motion, ABPS moved to dismiss based on lack of personal...subject to plenary review. See Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 481 (3d Cir. 1993). Rule 12(g) provides...

.... The District Court dismissed Hartig's complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. In its opinion, the Court ruled that an anti... As explained in greater detail hereafter, it was error for the District Court to dismiss the action under ...under Rule 12(b)(6), we recount the facts as alleged by the non-movant, Hartig, accepting them as true. Fowler v. UPMC Shadyside...

...complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. See Kerns v. United States, 534 F.Supp.2d 633...under Rule 12(b)(1), contending that there was no basis for subject matter jurisdiction under the FTCA because Scott was not acting within the scope of her employment with the Government at the time of...submitted eight exhibits, including two affidavits, in support of its Rule 12(b)(1) motion to dismiss. The exhibits included the following: • Scott's May 20...

...a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 21, 1999, the district...unsophisticated consumer would know that other options, besides immediate payment, exist." Plaintiff appealed the district court's Rule 12(b)(6) dismissal, and we affirmed the dismissal in Marshall... this court in regular active service pursuant to Circuit Rule 40(f). A majority did not favor a rehearing en banc on the question addressed in Walker, concerning the application of...

...appears from the face of the complaint that the inmates do not have the rights asserted, Rule 12(b)(6) may be invoked. Dismissal then would properly be on the merits rather than on the ground that the...Rule 12(b)(1), rather than on the merits. As the Supreme Court acknowledged, the prisoners might still be able to pursue the same claims in habeas corpus actions.... Preiser, 411 U.S. at 498-500, 93 S.Ct. at 1840-41. The district court's Rule 12(b)(1...

...relief "pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted." Rule 12(h)(2) provides that the Rule 12(b)(6) defense of...failure to state a claim upon which relief may be granted can be raised after an answer has been filed by motion for judgment on the pleadings pursuant to Rule 12(c). Where the Rule 12(b)(6) defense is...raised by a Rule 12(c) motion for judgment on the pleadings, we must apply the standard for a Rule 12(b)(6) motion in reviewing the district court's decision...

...that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to strike a claim for damages on the ground that such damages are precluded as a matter of law. We reverse...restitutionary relief. A. The Rule 12(f) Motion On October 9, 2008, Handi-Craft filed a Rule 12(0 motion to strike those...Federal Rule of Civil Procedure 12(0 for abuse of discretion." Nurse v. United States, 226 F.3d 996, 1000(9th Cir. 2000). However, the issue...

...District Court's decision granting a Rule 12(c) motion for judgment on the pleadings. NIGOS brought suit under 42 U.S.C. § 1983 alleging that the City of...NIGOS failed to establish its constitutional claims and, thus, granted Century Center's Rule 12(c) motion for judgment on the pleadings. In reaching its decision, the District Court resolved a conflict...protection and due process. The defendants moved for a judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. NIGOS moved for summary judgment. The District Court granted the...

...appropriate at all, it should have been one brought under Rule 12(b)(6) for failure to state a claim on which relief can be granted. Defendants, however, would argue that Tennessee chancery courts are.... The disagreement between the parties has ramifications which extend beyond this dispute being a mere "battle of labels." For example, in a Rule 12(b)(6) motion in which matters...as to any material facts, as the motion shall be treated as one for summary judgment. Fed.R.Civ.P. 56(c). Conversely, where subject matter jurisdiction is challenged under Rule 12(b)(1), as it was...

...two questions. First, we must decide whether Rule 12(g)(2) barred the district court from considering on the merits Apple's fourth motion to dismiss, brought under Rule 12(b)(6), in which Apple...dismissed Plaintiffs' suit under Rule 12(b)(6) for failure to state a claim, we take as true all plausible allegations. Apple released the iPhone in 2007. The iPhone is a "closed system...the entire complaint under Rule 12(b)(7) for failure to join ATTM as a defendant. This motion to dismiss was mooted when the district court consolidated the action with another action...

...not and that the district court here erred in granting relief which the defendants themselves were precluded, under Rule 12, Fed.R.Civ.P., from seeking. The complaint alleged that...of Civil Procedure, the conduct by defendants Day and Night amounts to a waiver of any objection to the personal jurisdiction of the court over it. Rule 12(b) of the Federal Rules...one or more other defenses or objections in a responsive pleading or motion. (emphasis added). Rule 12(h) provides in pertinent part...

...Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held the Employees had failed to allege their “regular rates” of pay were the Promised Rates and...Promised Rates. The Employees timely appealed. II. DISCUSSION On appeal, the Employees allege four grounds of error. First, they contend Rule 12(g)(2...decline to decide whether the district court's consideration of the County's regular rates argument was in technical violation of Rule 12(g)(2), because any presumed procedural error was harmless. We...

...moved under Fed.R.Civ.P. 12(b)(6) to dismiss for failure to state a claim. The motion also sought dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. The plaintiffs responded with an...further proceedings. Rule 12(b) gives district courts two options when matters outside the pleadings are presented in response to a 12(b)(6) motion: the court may exclude the additional material and...conformity with either option. If the district court considered the affidavit in disposing of the Rule 12(b)(6) motion, it erred in failing to convert the motion to one for summary judgment as the...

...phraseology is well known from Rule 12(b)(6), under which dismissal is "viewed with disfavor" and is reviewed de novo. Although other...Rule 12(b)(6), we find no persuasive or controlling authority for the appropriate standard of review for a dismissal under § 1997e(c) for...is the appropriate standard for Rule 12(b)(6) dismissals, we today adopt the de novo standard of review as appropriate in this circuit for appeals from such dismissals under § 1997e(c); and we now...

...(hereinafter "Subrogees") appeal the District Court's order granting the Government's motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1...Government is the only proper defendant in a case brought under the FTCA. The Government moved for dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction or..., in the alternative, Rule 12(b)(6) for failure to state a claim on which relief can be granted. As a third option, it moved for summary judgment under Rule 56. The Government did not file an answer...

..., filed a motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. Attached to defendant's motion.... According to the record before this court, this motion was filed after defendant filed an answer to plaintiff's complaint. Thus, technically, a motion under Rule ...) could not properly lie because Rule 12(b) requires that "[a] motion making any of these defenses shall be made before pleading." Fed.R.Civ.P. 12(b). However, as a matter of motions practice, such a...