By Rick Conner

Have you ever included a Rule 12(b)(6) motion to dismiss in your answer, with the intention of filing a more formal motion or submitting a detailed brief later? If so, you should be aware of a recent decision by Judge Michael L. Robinson of the North Carolina Business Court which casts further doubt on the legal legitimacy of this practice.

In New Friendship Used Clothing Collection, LLC v. Katz, 2017 NCBC 71 (N.C. Super. Ct. Aug. 18, 2017), one of the defendants, Katz, filed an answer on the response deadline which indicated that his first defense was a “Motion to Dismiss under Rule 12(b)(6).” Three days later, he filed a more lengthy 12(b)(6) motion with a supporting brief. Plaintiffs contended that Katz’s motion should be denied because the motion, filed after Katz’s answer, was untimely under Rule 12(b).

Judge Robinson noted that under the express language of the rule, a Rule 12(b) motion to dismiss for failure to state a claim must be made before filing a responsive pleading. If the party fails to make a 12(b)(6) motion before filing a responsive pleading, the party can only raise the defense (i) in a pleading permitted or ordered under Rule 7(a); (ii) by motion for judgment on the pleadings; or (iii) at trial.

Finding no helpful North Carolina appellate decisions, Judge Robinson turned to the federal rules and case law. He noted that “[d]espite the clear language” of Federal Rule 12(b) requiring a 12(b)(6) motion to be made before filing a responsive pleading, federal courts have applied the timing provision differently. Some have allowed defendants to file a simultaneous motion and an answer, and some have allowed defendants to file a post-answer 12(b)(6) motion as long as the defendant raised the defense in its answer.

On the other hand, some courts, including the Fourth Circuit and the North Carolina federal district courts have held that a Rule 12(b)(6) motion to dismiss filed after an answer is untimely, and construe such a motion as a motion for judgment on the pleadings under Rule 12(c).

The Court ruled, based on the “express language of Rule 12(b)” and in the absence of case law “interpreting such language to mean otherwise,” that a Rule 12(b) motion must be filed prior to an answer, but that such a motion filed after an answer may, if appropriate, be considered a Rule 12(c) motion for judgment on the pleadings.

Although Katz’s first defense in his answer was a “Motion to Dismiss under Rule 12(b)(6),” the Court held that did not constitute a motion to dismiss because Rule 7.2 of the Business Court Rules requires all motions to be set out in a separate document.

The Court denied Katz’s motion to dismiss but granted leave to re-file it as a motion for judgment on the pleadings under Rule 12(c) once all defendants had filed an answer and the pleadings were closed.

Although Business Court Rule 7.2 doesn’t apply to other state court cases outside the jurisdiction of the Business Court, Judge Robinson’s ruling that Rule 12(b) requires that a 12(b)(6) motion be made prior to filing an answer should be considered a warning to any state court litigator that including a 12(b)(6) motion with your answer is not consistent with the North Carolina Rules of Civil Procedure and may be rejected by the court.