by Wilton H. Strickland

It’s a familiar moment for attorneys who handle civil disputes: your client is served with a complaint or counterclaim that appears legally defective, but you remain unsure of how to take advantage of this. You could file a motion to dismiss, but even if successful the dismissal will most likely be without prejudice, thereby allowing the opposing party simply to ratchet up its pleading and file again. You could file a motion for summary judgment, but many courts are reluctant to consider such motions until discovery is completed, at which time the motion will have to include a large number of exhibits and will also demand a significant chunk of time to draft.

To solve this dilemma, I recommend dusting off one of the neglected weapons in the practitioner’s arsenal: the motion for judgment on the pleadings (“MJP”). Rule 12(c) of the Federal Rules of Civil Procedure sets forth this motion’s criteria, which are fairly standard in all jurisdictions nationwide.

You can assert an MJP at any time after the pleadings are “closed,” i.e., when the answer has been filed in response to the complaint or counterclaim, and the option of replying either has been exercised or waived. As of that moment, you can move to dispose of the defective pleading on the basis that it fails as a matter of law even if taken as true, the same approach as with a motion to dismiss under Federal Rule 12(b).

What makes the MJP so attractive is that it incorporates the simplicity of a motion to dismiss with the finality of a motion for summary judgment. As a “judgment,” the successful MJP is always with prejudice and carries full preclusive effect, without the need to pore over reams of discovery or spend months conducting depositions. The only arguments you need to assert are legal and arise from the pleading itself, making for a rapid and effective argument.

There is some uncertainty whether the MJP may be “partial” and thus target only certain aspects of a pleading rather than the entirety.  Rule 12(c) and its state analogues do not clarify this, so you should check the case law in your jurisdiction for any applicable precedent. For example, though Montana courts do not appear to have addressed this issue, there is lingering precedent in Florida holding that an MJP must be total, not partial. See, e.g., Morris v. Truax, 152 So. 2d 515, 519 (Fla. 2d DCA 1963) (“If a partial decree is desired, motion for summary decree is available. The rule permitting the use of motion for decree on the pleadings makes no provision for a partial decree[.]”); Bolen Int’l, Inc. v. Medow, 191 So. 2d 51, 53 (Fla. 3d DCA 1966) (“[T]he Rules of Civil Procedure do not provide for a partial final decree upon the pleadings. . . . We therefore conclude that the partial final decree upon the pleadings must be reversed.”).

Whether the MJP is whole or partial, it is definitely worth considering if you confront a defective pleading. The motion might very well succeed and save your client a great deal of time and expense; even if it doesn’t succeed, it can strengthen your bargaining posture and clarify the key issues for later argument at summary judgment or trial.