MBE Rules · Civil Procedure
Rule 12 motions to dismiss
FRCP 12(b)
The rule
12(b) lists 7 defenses. Subject-matter jurisdiction defense (12(b)(1)) is NEVER waived. Personal jurisdiction, venue, process, service of process defenses (12(b)(2)-(5)) are WAIVED if not raised in the first Rule 12 motion or in the responsive pleading.
In plain English
If you want to argue that a court can't hear your case because of issues like location or how you were notified, you must raise it early. But if it's about the court's power to hear the type of case, you can raise it anytime.
Worked example
The defendant believes the court is too far away (venue issue) and doesn't mention it in his first response. Later, he tries to argue this, but it's too late. However, if he later discovers the court can't hear this type of case, he can still bring it up.
Memory hook
12(b) Bingo: 1 never waived, 2-5 often waived. Remember, raise it or lose it!
The trap
Students think: All defenses can be raised anytime. Wrong, because 12(b)(2)-(5) are waived if not timely. The actual test is to raise these in the first motion or answer.
How examiners test it
The MBE loves: a defendant forgets to raise personal jurisdiction in their first motion. Question: Can they bring it up later? Trap: Assuming it's okay — it's waived if not in the first response.
Drill this rule until it can't fail you.
Vrenberg generates unlimited questions on this exact rule, tracks your mastery of it, and brings it back until it sticks.