Federal Rule 12(g)(2) generally prohibits a successive motion to dismiss based on grounds that were known at the time of the original motion. This rule was tested in VNB Realty, Inc. v. U.S. Bank Nat’l Assoc., No. 2:13-4743, 2015 WL 8490948 (D. N.J. Dec. 10, 2015). There, at the time defendant U.S. Bank filed a motion to dismiss, the Second Circuit was considering an issue of first impression that could have potentially provided an additional basis for dismissing the plaintiff’s complaint. Rather than fully briefing that argument in its motion, U.S. Bank informed the court of the situation and stated that it was expressly preserving the argument pending the Second Circuit’s decision.

After the Second Circuit ruled, U.S. Bank filed a second motion to dismiss. In response, the plaintiff argued that U.S. Bank had waived the argument by failing to brief the issue in its first motion.

The court disagreed. Citing an exception to the rule against successive motions that applied to motions under Rule 12(c), the court held that the substance of the motion to dismiss would be no different had it been filed as a motion for judgment on the pleadings. The court also was persuaded by the efficiency of U.S. Bank’s approach, stating:

Here, accepting U.S. Bank's motion would promote judicial efficiency while resulting in little to no prejudice against VNB. First, U.S. Bank does not simply seek a ‘second bite at the apple’ by offering certain arguments in one motion to dismiss, losing, and then raising new arguments in a second motion to dismiss. Instead, U.S. Bank was upfront in explaining that it was preserving its argument . . . because another court was considering the issue as a matter of first impression.

Preservation Issues:

  • Successive motions to dismiss under Rule 12
  • Waiver
  • Preservation of defenses

Tips:

Although U.S. Bank’s strategy was successful, its approach was risky – particularly because the case under appellate consideration would not be binding authority in the District of New Jersey (which sits in the Third Circuit). In addition, if the Second Circuit’s decision had been adverse to U.S. Bank’s position, this approach could have backfired.

A safer course would have been to fully brief the argument, while also alerting the court to the pending case and allowing the court to defer its ruling, if it chose to do so. U.S. Bank also could have styled the second motion as, in the alternative, a Rule 12(c) motion for judgment on the pleadings, in the event the court determined that the 12(b) motion had been waived (which was the practical result here, because the court decided the motion under the Rule 12(c) standard).

Overall, the waiver question in this case was ultimately low risk due to the availability of a 12(c) motion and potentially a motion for summary judgment. In riskier waiver situations, best practice would be the more conservative, yet equally candid, approach of fully briefing the argument in the first motion and informing the court of the pending case. In either situation, this case illustrates that candor and transparency with the court will often be rewarded.