MOTION TO DISMISS - NRCP 12(b)(5) - FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

MOTIONS TO DISMISS - NRCP 12(b)(5) - FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A Rule 12(b)(5) motion is especially important because the motion asserts that on the facts as pleaded by the plaintiff, no recovery is possible under any legal theory. This motion is generally made prior to answering the complaint. If the complaint is dismissed in response to the defendant’s motion to dismiss, the plaintiff will likely have the opportunity to amend his complaint to state a claim upon which relief can be granted. The pleading rules are very liberal and entitle the plaintiff to amend its complaint without leave of the court any time before a responsive pleading has been filed (the answer). Since a motion to dismiss does not qualify as a responsive pleading, the plaintiff will likely be granted leave to amend.

If the defendant files his motion to dismiss after he has served his answer and the court grants it, the plaintiff must be given leave from the court to amend its complaint. In other words, it is no longer entitled to an automatic amendment because the defendant has made a responsive pleading.

If the complaint is so vague and incomprehensible that the defendant cannot reasonably make sense of it, he may file a Rule 12(e) motion asking for a more definite statement. If the court grants this motion the plaintiff will have 10 days in which to cure the alleged defects. If the plaintiff fails to do so then the court will strike the pleading to which the motion was directed or make an order that it deems just.

The defendant may also file a Rule 12(f) motion to strike material from the complaint that is redundant, immaterial, impertinent, or scandalous. However, most courts are wary to grant such motions, instead relying on the plaintiff’s later ability to plead certain facts with the required specificity. Global Business Lawyers Nevada Business Lawyers Lovaas & Lehtinen, P.C.

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