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When to File a Motion for Judgment on the Pleadings Under FRCP 12(c)

By George Khoury, Esq. | Last updated on

Federal Rule of Civil Procedure Rule 12 provides quite a bit of help to litigators looking to avoid trial. Apart from the various motions to dismiss that can be filed under 12(b), subsection (c) also provides an effective tool to end cases through motions for judgment on the pleadings.

Typically, a motion seeking judgment on the pleadings can be filed any time after an answer has been filed and the time to respond to the answer -- under subsection (f) or otherwise -- has passed. However, the motion can also be filed pretty much at any time up to when the verdict gets handed down. For defendants, strategically, a 12(c) motion differs from one filed under Rule 12(b), as the option to amend a complaint once as of right under Rule 15 vanishes.

When to File Under 12(c)

Generally, a motion for judgment on the pleadings is like a mash up of a 12(b)6 and rule 56 motion. Defendants want to file this when it is clear from the pleadings that there is insufficient factual support, or just no redressability, for the causes of action asserted. However, if the factual support can be found outside the pleading, as suggested in Rule 12(d), the motion can be converted to a Rule 56 summary judgment by the court. When this occurs, the court may stay consideration and allow for additional briefing after the parties have time to conduct discovery.

Due to the risk of an early 12(c) motion being refashioned into summary judgment, a defendant may want to carefully consider filing if the evidence against them is actually out there somewhere.

The 12(c) Defense Trap

For defense attorneys, Rule 12(c) allows for a small strategic advantage if they're willing to take a risk. If a plaintiff files a defective complaint, moving under 12(b)6 may allow the plaintiff to easily correct the error via the free first amendment. Rather than allowing (or basically reminding) plaintiff to amend by filing under 12(b)6, just answer, then file under 12(c).

After an answer is filed, a plaintiff will need to move the court for leave to file an amendment. Given the tight deadlines of most motion briefing schedules, adding in a motion for leave to amend, as well as the complaint's amendment, while trying to defend a 12(c) motion, can really turn up the pressure on a plaintiff.

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