See Ted’s excellent reply to the last post for context around 12c in this case. Highligting is mine.

Experienced practitioners are familiar with Federal Rule of Civil Procedure 12, which provides for various pretrial motions to challenge the opposing party’s pleadings and to assert other defenses and objections. If asking attorneys what type of pretrial challenges they consider to be part of their arsenal of motions challenging the adequacy of the pleadings, their response likely would be limited to motions to dismiss for failure to state a claim, motions to strike, or motions for summary judgment. Rule 12(c) motions—allowing a party to move, after the pleadings are closed, for judgment on the pleadings—are often overlooked. Practitioners, however, should consider and incorporate Rule 12(c) motions into their litigation strategies.

Motions for judgment on the pleadings are essentially trials on the pleadings. Rule 12(c) was designed to prevent the piecemeal process of judicial determination that prevailed under the old common law practice.2 It allows for a decision on the merits of the claims based upon the pleadings in special circumstances, such as when the parties do not dispute the facts in the pleadings. Thus, Rule 12(c) motions can help dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit. Because a motion for judgment on the pleadings can highlight for the court its ability to resolve the case, merely by examining the initial papers,3 its use can mean the difference between unnecessarily protracted litigation and a prompt resolution of the dispute. As one author described a winning motion practice, albeit in the context of summary judgment:

[w]ith one successful roll of the . . . dice, an attorney can win the trial-court round, put an opponent on the defensive, save time and money that would be spent in court, and emerge a hero to the client. Used correctly and shrewdly, [a dispositive motion] is a lethal weapon that can resolve lengthy, expensive, and exhausting litigation years before a case reaches the trial stage.4




4 thoughts on “12(c)

  1. The filings will be interesting to read, that is for certain! I plan to have my lawyer brother review and will post updated comments on both the answer from the trustees on the 12c motion to dismiss (July 15th) and the HK/Softvest/Oliver counter by August 5th. These will be public court documents so we will get a chance to review.

    The key will be how much case law can be found in similar situations by each side. Expect to see both sides buttress their arguments with examples with court decisions. The less case law that is seen and the more editorial the pleadings are will be a sign of weakness to watch for.

    My brother says based on what he has seen so far that HK/Softvest/Oliver have somewhere between a 1/3 and 1/2 probability of getting the dismissal on much of the original lawsuit. This makes me think the decision to form a study group to explore a C-corp move is partly defensive, and in case of any new elections to show the Trustees are being responsive.

    Thanks JackFutures for your support for my undeclared bid to be prez, of what I am not sure? :>)

    Liked by 1 person

    • Sounds like he sees several points that should be dismissed, but then some that appear to be more valid…. do you think that the judge will dismiss any of the allegations that HK/Softvest/Oliver are alleging, or do you think all of those are well supported?

      Liked by 1 person

Comments are closed.