Get Out of My Life! Part Two

July 2016 51 Good things come to those who wait. As promised, this edition of the Scrivener completes our journey through Rule 12 motions, having traveled in the last issue through motions under Rule 12(b)(1)-(3). • 12(b)(4) Insufficient process (can be waived by failing to raise it in an answer or motion to dismiss or by failing to raise it in the first motion to dismiss) “An objection under Rule 12(b)(4) concerns the form of the process rather than the manner or method of its service. Technically, therefore, a Rule 12(b)(4) motion is proper only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b) that deals specifically with the content of the summons.” 5B Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 1353 (3d ed. 1998) [hereinafter “Wright & Miller”]. In other words, the objection is to the content of the summons and not the service. See, e.g., Hammond v. Honda Motor Co., Ltd., 128 F.R.D. 638, 639 (D.S.C. 1989) (denying motion to quash under Rule 12(b)(4) that was based on grounds that the summons did not comply with the requirements of the Hague Convention); State Bd. of Med. Exam’rs of South Carolina v. Fenwick Hall, Inc., 300 S.C. 274, 276, 387 S.E.2d 458, 459 (1990) (granting a Rule 12(b)(6) motion because summons requiring an appearance in less than 30 days was “fatally and jurisdictionally defective”). • 12(b)(5) Insufficient service of process (can be waived by failing to raise it in an answer or motion to dismiss or by failing to raise it in the first motion to dismiss) Insufficient service of process under Rule 12(b)(5) challenges only the service of the pleadings and not the contents. “An appropriate objection under Rule 12(b)(5) would be the nonreceipt by the defendant of a summons, the absence of an agency relationship between the recipient of process and the defendant, a lack of notice to the defendant when service is delivered to a third party under a federal or state statute, or any other failure to comply with the procedural requirements in the applicable service provisions.” 5B Wright & Miller § 1353 (noting that some courts have treated Rule 5(b)(5) motions as if it were a Rule 12(b)(2) motion for lack of personal jurisdiction). Objections to sufficiency of process should be made with specificity. See Clifton v. Citimortgage, Inc., No. 3:11-cv-50-CMC, 2011 WL 891317, at *2 (D.S.C. Mar. 11, 2011) (holding that raising concerns as to adequacy of service, without more, is not sufficient when defendant waived the objection of service if the case were to survive the motion to dismiss); Unisun Ins. v. Hawkins, 342 S.C. 537, 542, 537 S.E.2d 559, 562 (Ct. App. 2000) (holding that defendant waived defense of insufficient service of process and statute of limitations by failing to object specifically to the sufficiency of the service of process and failing to point out the manner in which the plaintiff failed to properly serve). The motion will be granted only when the defect is prejudicial to the defendant. See 5B Wright & Miller § 1353. The party on whose behalf service has been made generally has the burden of establishing the validity of service. Id. Courts generally allow the plaintiff to re-serve the defendant properly without dismissing the action or will dismiss the case without prejudice to bring it again with proper service, so parties may consider the costs and delays to both sides when deciding whether to challenge service if the defect is curable. • 12(b)(6) Failure to state a claim upon which relief can be granted (not waived) The purpose of a motion under Rule 12(b)(6) is “to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiff’s case.” 5B Wright & Miller § 1356. “[I]mportantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). “Accordingly, a Rule 12(b)(6) motion should only be granted if, after accepting all well-pleaded allegations in the plaintiff’s complaint as true and drawing all reasonable factual Get Out of My Life! Part Two Rule 12(b)(4)-(8) motions and motions for judgment on the pleadings, for a more definite statement, and to strike By Scott Moïse THE SCRIVENER inferences from those facts in the plaintiff’s favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Id.; Baird v. Charleston Cty., 333 S.C. 519, 527, 511 S.E.2d 69, 73 (1999). In federal court, the court should not dismiss a complaint under this rule when a plaintiff pleads facts sufficient to satisfy the Twombly -Iqbal standard, but does not invoke the correct legal theory. See Johnson v. City of Shelby, Mississippi, 135 S. Ct. 346, 347 (2014) (reversing trial court’s dismissal for plaintiffs’ failure to invoke § 1983 in their complaint). Therefore, a ruling on a 12(b)(6) motion to dismiss for failure to state a claim must be based solely upon allegations set forth on the face of a complaint. See State Bd. of Med. Examiners of South Carolina, 300 S.C. at 276, 387 S.E.2d at 459; Toussaint v. Ham, 292 S.C. 415, 357 S.E.2d 8 (1987). The moving party has the burden of proof. See Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854 F. Supp. 400, 407 (D.S.C. 1994). If the court considers evidence outside the pleadings in a Rule 12(b)(6) motion, the motion is converted to summary judgment. See Wilson-Cook Med., Inc. v. Wilson, 942 F.2d 247, 252 (4th Cir. 1991) (holding that Rule 12(b)(6) motion was not converted to summary judgment when affidavits were submitted in support of motion because court did not consider the affidavit in deciding the aspects of the motion related to 12(b)(6)); Richland-Lexington Airport Dist., 854 F. Supp. at 407. Failure to state a claim can be raised in a pleading or a Rule 12(c) motion for judgment on the pleadings or at trial. Fed. R. Civ. P. 12(h); S.C. R. Civ. P. 12(h). • 12(b)(7) Failure to join a party under Rule 19 (indispensable parties) (not waived) “Rule 12(b)(7) permits a motion to dismiss when there is an absent person without whom complete relief cannot be granted.” Register v. Cameron & Barkley Co., 467 F. Supp. 2d 519, 530 (D.S.C. 2006) (citations omitted) (denying motion). When addressing a Rule 12(b)(7) motion, the federal court initially determines if the absent party should be joined as a necessary party in accordance with Rule 19(a)(1). Id. When making that determination, the court must base its decision on the pleadings as they appear at the time of the proposed joinder. Id. If a court determines that a person is necessary under Rule 19(a), and if joinder of that person is impossible due to jurisdictional or equitable limitations, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed under Rule 12(b)(7), the absent person being thus regarded as indispensable. Id. The state court has a similar procedure. “Once the defense of Rule 12(b)(7) is asserted, the proper course for the trial court is to determine the necessity of adding a new party under Rule 19 to insure a full adjudication of the controversy.” BancOhio Nat’l Bank v. Neville, 310 S.C. 323, 328, 426 S.E.2d 773, 776 (1993). The trial court may dismiss the action, with leave to join the necessary party. See Spanish Wells Prop. Owners Ass’n, Inc. v. Bd. of Adjustment of Town of Hilton Head Island, 295 S.C. 67, 69, 367 S.E.2d 160, 161 (1988). The burden is on the moving party “to show the nature of the unprotected interests of the absent individuals or organizations and the possibility of injury to them or that the parties before the court will be disadvantaged by their absence.” 5C Wright & Miller § 1359. In reviewing a Rule 12(b)(7) motion, a court must accept all factual allegations in the complaint as true and draw inferences in favor of the non-moving party. The judge is not limited to the pleadings. Id. Failure to join an indispensable party can be raised in a pleading or a Rule 12(c) motion for judgment on the pleadings or at trial. Fed. R. Civ. P. 12(h); S.C. R. Civ. P. 12(h). 52 SC Lawyer July 2016 53 • 12(b)(8) Another action is pending between the same parties for the same claim (state court only) (can be waived by failing to raise it in an answer or motion to dismiss or by failing to raise it in the first motion to dismiss) Under Rule 12(b)(8), the parties must have identity of parties and claims. See Cricket Cove Ventures, LLC v. Gilland, 390 S.C. 312, 322, 701 S.E.2d 39, 44 (Ct. App. 2010). For identity of parties, the same parties must be involved in their same capacities. See id. (finding that the two actions were different because one concerned a party in his official capacity and the other in his individual capacity); Corbett v. City of Myrtle Beach, 336 S.C. 601, 610, 521 S.E.2d 276, 281 (Ct. App. 1999). Determination of whether the identity of the claims is the same is subject to an exacting standard: The rule has historic ties to a former statute providing a defendant a similar opportunity to demur; our supreme court traditionally interpreted that statute narrowly, stating that it only applied when there was identity of parties, causes of action and relief. We find this approach consistent with modern day practice under rules similar to our Rule 12(b)(8). Accordingly, we interpret the rule narrowly such that the claim must be precisely or substantially the same in both proceedings in order for the drastic remedy of dismissal to be appropriate under Rule 12(b)(8). Cricket Cove, 390 S.C. at 323, 701 S.E.2d at 45 (quoting Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 106, 674 S.E.2d 524, 531 (Ct. App. 2009)). 12(c) Motion for Judgment on the Pleadings When: These motions are made any time after the pleadings are closed (but early enough to not to delay trial). The pleadings are generally “closed upon the filing of a complaint and answer, unless a counterclaim, cross-claim or thirdparty claim is interposed.” Progressive Cas. Ins. Co. v. Estate of Crone, 894 F. Supp. 383, 385 (D. Kan. 1995) (citing 5C Wright and Miller, § 1367); see also Burbach Broad. Co. of Delaware v. Elkins Radio Corp., 278 F.3d 401, 405 (4th Cir. 2002) (“Because [the defendant’s] answer had been filed, the pleadings were closed at the time of the motion.”). What: These motions operate to “dispose of cases in which there is no substantive dispute that warrants the litigants and the court proceeding further.” Thomas Daniels Agency, Inc. v. Nationwide Ins. Co. of Am., 122 F. Supp. 3d 448 (D.S.C. 2015) (granting judgment on the pleadings to insurer based on lack of duty to support claim of negligence and plaintiff’s failure to state a claim for fraud and attached emails did not support the claim). When considering this motion, the court is limited to reviewing 54 SC Lawyer the pleadings and any documents attached to the pleadings as exhibits. Id. Judgment on the pleadings is only warranted if “the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.” Id.; Home Builders Ass’n of South Carolina v. Sch. Dist. No. 2 of Dorchester Cty., 405 S.C. 458, 460, 748 S.E.2d 230, 231 (2013) (reversing judgment on the pleadings); Griggs v. Nationstar Mortg., LLC, No. 2013-UP-277, 2013 WL 8538720, at *1 (Ct. App. June 26, 2013) (“A judgment on the pleadings against the plaintiff is not proper if there is an issue of fact raised by the complaint which, if resolved in favor of the plaintiff, would entitle him to judgment … [A] complaint is sufficient if it states any cause of action or it appears that the plaintiff is entitled to any relief whatsoever.”). A Rule 12(c) motion “tests only the sufficiency of the complaint and does not resolve the merits of the plaintiff’s claims or any disputes of fact.” Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014). The court is required to accept all wellpleaded allegations of the complaint as true and draw all reasonable factual inferences in the plaintiff’s favor. Id. However, the court “is not obliged to accept allegations that ‘represent unwarranted inferences, unreasonable conclusions, or arguments,’ or that ‘contradict matters properly subject to judicial notice or by exhibit.’” Id. (affirming trial court’s granting of judgment on the pleadings) (citations omitted). 12(e) Motion for a More Definite Statement When: These motions must be made before filing a responsive pleading. What: Rule 12(e) allows a defendant to move for a more definite statement if the complaint “is so vague or ambiguous that [he] cannot reasonably be required to frame a responsive pleading. Hodgson v. Virginia Baptist Hosp., Inc., 482 F.2d 821, 822-23 (4th Cir. 1973); see also Dye v. Gainey, 320 S.C. 65, 67, 463 S.E.2d 97, 98 (Ct. App. 1995) (trial court ordered plaintiff to make a more definite statement with regards to her “prima facie tort” cause of action). “A Rule 12(e) ‘motion is designed to strike at unintelligibility rather than simple want of detail’ … Moreover, such a motion ‘is not a substitute for the discovery process, and where the information sought by the movant is available or properly sought through discovery, the motion should be denied.’” Milliken & Co. v. Evans, No. 7:14-CV-778-BHH, 2016 WL 470017, at *3 (D.S.C. Feb. 8, 2016) (internal citations omitted). 12(f) Motion to Strike When: At any time before a responsive pleading is filed or (if no response is required) within 21 days (federal court) or 30 days (SC state court) after being served with the pleading. Brock v. Bowman, No. 3:10-2821-MGL, 2013 WL 5569995, at *8 (D.S.C. Oct. 9, 2013) (adopting magistrate’s report that found the plaintiff’s motion to strike was untimely for failure to be filed within 21 days after receiving the defendant’s answer). What: A motion to strike under Rule 12(f) is the appropriate remedy for the elimination of redundant, immaterial, impertinent, or scandalous matter in any pleading, and is the primary procedure for objecting to an insufficient defense. The decision to grant or deny a Rule 12(f) motion is within the discretion of the judge. See Briggs v. Richardson, 273 S.C. 376, 380, 256 S.E.2d 544, 546 (1979). The South Carolina version of Rule 12(f) specifically requires that the motion point out the defects in the pleading. This requirement is implicit in the federal rules and required under Rule 7, requiring that motions “state with particularity the grounds for seeking the motion.” These motions are generally only granted when the challenged allegations “have no possible relation or logical connection to the subject matter of the controversy” or “cause some form of significant prejudice to one or more of the parties to the action.” Sturdivant v. Cont’l Tire The Americas, LLC, No. 5:14-CV-02852-JMC, 2015 WL 263015, at *1 (D.S.C. Jan. 21, 2015) (denying motion to strike); see also Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (“Rule 12(f) motions are generally viewed with disfavor ‘because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.’”). A motion to strike matter from an answer will not be granted, “unless the moving party demonstrates that the challenged material is so unrelated to the plaintiff’s claims as to be unworthy of any consideration as a defense such that its presence in the pleading throughout the proceeding will be prejudicial to the moving party.” Brock, 2013 WL 5569995, at *8 (citations omitted). If any substantial questions of fact or law exist, “the court should refrain from acting until some later time when these issues can be more appropriately dealt with.” Id.; see also Monster Daddy LLC v. Monster Cable Prods., Inc., No. 6:10-1170- HMH, 2010 WL 4853661, at *8 (D.S.C. Nov. 23, 2010) (striking three affirmative defenses that were “bare legal conclusions,” but allowing the opportunity to replead). Conclusion Rule 12 gives both sides to a lawsuit a lot to think about when bringing and responding to a lawsuit. The next time your telephone rings with a shiny new case to defend, stop and take a deep breath before moving forward with the answer. Who knows? Rule 12 might just hold the key to a prompt, efficient, and client-pleasing resolution to the matter. ⚖