Motion to Dismiss

 United States District Court
 Central District of California

Before Responsive Pleading

A Rule 12(b) motion must be made before pleading if a responsive pleading is allowed. FRCP 12(b).

RULE AMENDED EFFECTIVE DECEMBER 1, 2009

For any party other than the United States, a Rule 12(b) motion must be made on or before the 20th 21st day after service of the complaint. FRCP 12(a)(1)(amended eff 12/1/09).

Response to Amended Complaint

RULE AMENDED EFFECTIVE DECEMBER 1, 2009

A pleading responsive to an amended complaint is due within the time remaining for response to the original complaint, or within 10 14 days after service of the amended complaint, whichever is later. FRCP 15(a)(3)(amended eff 12/1/09).

Rule 4 Waiver

If service of the summons has been timely waived on request under Rule 4(d), defendant must serve an answer within 60 days after the date when the request for waiver was sent, or within 90 days after that date if the defendant was addressed outside any judicial district of the United States. FRCP 12(a)(1)(A)(ii).

After Granting Motion For a More Definite Statement

RULE AMENDED EFFECTIVE DECEMBER 1, 2009

If the court grants a motion for a more definite statement, the responsive pleading must be served within 10 14 days after the more definite statement is served. FRCP 12(a)(4)(B)(amended eff 12/1/09).

Service of Notice, Motion and Affidavits Under the FRCP

RULES AMENDED EFFECTIVE DECEMBER 1, 2009

Editor's Note: Most United States District Courts have local rules that set forth requirements regarding the service of moving, opposing and reply papers.In many cases these local rules provide different requirements than those set forth in the FRCP. It is recommended practice to follow local rule requirements with respect to briefing schedules for motions. SmartRules Guides include coverage of all local motion practice requirements following coverage of the requirements under the FRCP.

Notice, Motion and Affidavits--14 Days Before Hearing

A written motion and notice of the hearing must be served at least 5 14 days before the time specified for the hearing, except, when the motion may be heard ex parte, when these rules set a different time; or when a court order which a party may, for good cause, apply for ex parte sets a different time. FRCP 6(c)(1)(amended eff 12/1/09). Any affidavit supporting a motion must be served with the motion. FRCP 6(c)(2)(amended eff 12/1/09).

Opposing Affidavits--7 Days Before Hearing

Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 1 7 days before the hearing, unless the court permits service at another time. FRCP 6(c)(2)(amended eff 12/1/09).

Service by Mail, Delivery to Clerk, Electronic or Other Means--3 Additional Days

When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C)(mail), (D)(delivery to court clerk), (E)(electronic means), or (F)(other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a). FRCP 6(d).

Calculating the Due Date or Deadline

RULE AMENDED EFFECTIVE DECEMBER 1, 2009

Under amended FRCP 6(a)(1), all deadlines stated in days, no matter the length of the period, are computed in the same way. The day of the event that triggers the deadline is not counted. All other days - including intermediate Saturdays, Sundays, and legal holidays - are counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. FRCP 6(a)(1)(amended eff 12/1/09).

When determining the last day of a filing period stated in days, a day on which the clerk's office is not accessible because of the weather or another reason is treated like a Saturday, Sunday, or legal holiday. FRCP 6(a)(3)(amended eff 12/1/09).

The end of the last day of a period is defined as midnight in the court's time zone for electronic filing, and closure of the clerk's office for filing by any other means. FRCP 6(a)(4)(amended eff 12/1/09).

In determining what is the "next" day, one must continue counting in the same direction - that is, forward when computing a forward-looking period and backward when computing a backward-looking period. FRCP 6(a)(5)(amended eff 12/1/09).

Legal holidays are set forth and defined at Rule 6(a)(6). FRCP 6(a)(6)(amended eff 12/1/09).

Cut-off or Deadline

The court must set a motion cut-off date or deadline. FRCP 16(b)(3).

Local Rules Re Briefing Schedule

Scheduling the Hearing

Most Central District judges designate a certain day of the week and time for civil motion hearings, and require counsel to notice motions for that day and time and file and serve the moving papers with adequate statutory notice. A directory of Central District Judges' procedures and schedules can be found online at: http://www.cacd.uscourts.gov/CACD/JudgeReq.nsf/FAQs+about+Judges'+Procedures+and+Schedules?OpenView.

Moving Papers

RULE AMENDED EFFECTIVE JANUARY 1, 2010

If mailed, the notice of motion must be served not later than 31 days before the Motion Day designated in the notice. If served personally, or electronically, the notice of motion must be served not later than 28 days before the Motion Day designated in the notice. Central Dist. LR 6-1 (amended eff 1/1/10).

RULE AMENDED EFFECTIVE JANUARY 1, 2010

Motions must be filed with the clerk not later than 20 28 days before the hearing date. Central Dist. LR 6-1(amended eff 1/1/10).

Opposition Papers

RULE AMENDED EFFECTIVE JANUARY 1, 2010

Opposition papers must be served and filed at least 14 21 days before the hearing date. Central Dist. LR 7-9 (amended eff 1/1/10).

Reply Papers

RULE AMENDED EFFECTIVE JANUARY 1, 2010

Reply papers must be served at least 7 calendar 14 days before the hearing date, not excluding Saturdays, Sundays and holidays.Central Dist. LR 7-10 (amended eff 1/1/10).

If Hearing Date Continued

RULE AMENDED EFFECTIVE JANUARY 1, 2010

Unless otherwise specified by the court, the entry of an order continuing a hearing on a motion automatically extends the time for filing and serving opposition and reply papers to 14 21 days and 7 14 days, respectively, before the hearing date. Central Dist. LR 7-11 (amended eff 1/1/10).

Lodge Deposition Transcripts 10 Days Before Hearing

The relevant portion of any deposition transcript must be authenticated, attached as an exhibit, and bracketed in the margins to indicate the exact questions and answers on which the party offering the testimony relies. Central Dist. LR 16-2.7; Central Dist. LR 32-1. The original transcript must be lodged at least 10 days before the hearing date. Central Dist. LR 32-1.

Grounds

A Rule 12(b) motion can be based on: (1) lack of subject matter jurisdiction; (2) lack of personal j more...

Matters Outside the Pleadings -- Conversion to Motion for Summary Judgment

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not more...

Joining Motions

A motion under Rule 12 may be joined with any other motion allowed by Rule 12. . more...

Limitation on Further Motions

Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not mak more...

Waiving and Preserving Defenses

A party waives any defense listed in Rule 12(b)(2)-(5), these include lack of personal jurisdiction, more...

Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), more...

Lack of Subject-Matter Jurisdiction

If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismis more...

Before Trial Or Deferred Until Trial

If a party so moves, any defense listed in Rule 12(b)(1)-(7) whether made in a pleading or by motion more...

Motion

A motion must be made in writing, (unless made during a hearing or at trial), and must set forth wit more...

First Page Must Include Hearing Date and Time

The first page of every document filed in connection with a motion must include, under the title of more...

Notice of Motion

The notice of motion must include a concise statement of the relief or Court action sought by the mo more...

Certification of Conference of Counsel

more...

Except in exempt cases, or for discovery motions or applications for TROs or preliminary injunctions more...

"This motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place more...

Memorandum of Points and Authorities

A memorandum of points and authorities must set forth the legal points and authorities and evidence more...

Twenty-Five (25) Page Limit on Briefs

Memoranda of points and authorities, pre-trial, trial, and post-trial briefs shall not exceed twenty more...

Table of Contents and Authorities

Any memorandum of points and authorities or any brief exceeding ten (10) pages in length, excluding more...

Entire Document Sequentially Numbered

A memorandum of points and authorities must be numbered consecutively at the bottom of each page.. E more...

Requirements for Electronically Filed Documents

PDF

Documents filed electronically must be submitted in PDF format. Central Dist. G. O. 08-02 (IV)(C)(am more...

Obligation to Protect Sensitive and Private Information

The parties shall refrain from including, and/or shall redact where inclusion is necessary, personal more...

Hyperlinks

Documents filed electronically may only contain hyperlinks to sections of the same document. Central more...

Signature

Every pleading, written motion, and other paper must be signed by at least one attorney of record in more...

Signature on Electronic Documents

An electronically filed document shall be deemed to be signed by the person (the Signatory) when the more...

CM/ECF Users

In the case of a Signatory who is a CM/ECF User, such document shall be deemed signed, regardless of more...

Documents Requiring Multiple CM/ECF User Signatures

In the case of documents requiring multiple signatures, such as stipulations, the CM/ECF User shall more...

Documents Requiring Signatures Other Than CM/ECF Users

In the case of documents requiring signatures other than the attorneys of record, the CM/ECF User sh more...

Additional Requirements

Central District of California SmartRules Guide: GENERAL RULES AND FORMATTING REQUIREMENTS. more...

Supporting and Opposing Affidavits Under the FRCP

Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides othe more...

Central District of California SmartRules procedural guide: DECLARATIONS. more...

Written

Declarations or other written evidence must support factual contentions in memoranda of points and a more...

Deposition Testimony

The relevant portion of any deposition transcript must be authenticated, attached as an exhibit, and more...

Presentation of Evidence Converts Motion

If, on a motion under Rule 12(b)(6) (failure to state a claim upon which relief can be granted) or 1 more...

Notice of Related Case

With its first appearance, a party may be required to file a Notice of Related Case. A Notice of Rel more...

Within five (5) days of the service of a Notice of Related Case, or on first appearance, any party m more...

Notice of Pendency of Other Actions

With its first appearance, a party may be required to file a "Notice of Pendency of Other Actions or more...

The Notice must contain: (a) a description sufficient to identify all other actions or proceedings; more...

Notice of Petition to the Judicial Panel on Multidistrict Litigation

Where an action is the subject of, or related to, an action before the Judicial Panel on Multidistri more...

Disclosure Statement

File With First Appearance

A party must file a disclosure statement with its first appearance, pleading, petition, motion, resp more...

Supplemental Filing

A party must promptly file a supplemental disclosure statement if any required information changes.. more...

Contents

A nongovernmental corporate party must file 2 copies of a disclosure statement that: more...

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its st more...

(2) states that there is no such corporation. . more...

Certification as to Interested Parties

To enable the Court to evaluate possible disqualification or recusal, counsel for all non-government more...

Notification As To Refiled Action

With its first appearance, a party may be required to file a Notification As To Refiled Action.When more...

Proposed Order

Central District of California SmartRules procedural guide:PROPOSED ORDER. more...

Electronic Filing Required in Most Cases

Except as specifically provided for in General Order 08-02, all civil and criminal cases are subject more...

In all cases subject to electronic filing, all documents required to be filed with the Clerk must be more...

Filing Documents Electronically

For updated information regarding electronic (and traditional) filing requirements, Central Distric more...

Courtesy Paper Copies

Mandatory chambers paper copies of all electronically filed documents must be delivered to the chamb more...

Service of Pleadings and Documents Filed Electronically

Upon the electronic filing of a document, a Notice of Electronic Filing (NEF) is automatically gener more...

Orders or other documents electronically filed by the Court will be served on attorneys only by the more...

. more...

Traditional Filing and Service Rules

Filing and Service Required

Papers must be filed with the court, together with a certificate of service, within a reasonable tim more...

Method of Service

Service of papers must be made on all parties by mail, personal delivery, or, with the written conse more...

Attached Proof of Service Must Be At End of Document

If the proof of service is attached to the original document, it must be attached as the last page.. more...

Appearance

Counsel for both parties must be present at the hearing and familiar with the case. Failure to appea more...

Preparation of Order

The attorney directed to do so by the Court shall prepare each order. When the Court orders a party more...

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