Grand Prairie, TX asked in Employment Law and Employment Discrimination for Texas

Q: FRCP 12(b)(6) v. FRCP 12(c)?

The opposing party early in the case file a FRCP 12(b)(6) to dismiss stating the I failed to state a claim for relief, I didn't exhaust my administrative remedies for EEOC. So, I survived that now the opposing party is coming under v. FRCP 12(c) almost a year later regarding the pleading. He has also stated that I failed to state a claim for relief again and now he added a new defense stating that some of my claims are time barred. I need assistance. Can that be done? It seems the 2 are the same.

1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Employment Law Lawyer
  • Frisco, TX
  • Licensed in Texas

A: While the two are equivalent and are subject to the same standard, there are some subtle differences. For example, a 12(b)(6) motion only considers the allegations of the plaintiff's pleadings. A 12(c) motion also considers the allegations of the defendant's pleadings and the court can take judicial notice of matters in the public record.

One fairly common situation where a 12(c) motion may be proper, whereas a 12(b)(6) motion is not, concerns affirmative defenses. If a defendant raises an affirmative defense in its answer (e.g. statute of limitations), a plaintiff may want to raise some new matter in avoidance of that affirmative defense (e.g. fraudulent concealment or some other basis for tolling the statute of limitations). If the plaintiff does not properly raise a matter in avoidance, the court can rule in favor of the defendant on the affirmative defense if its applicability is clear from the pleadings and matters of public record (like EEOC filings). On a 12(b)(6) motion, that may not be clear enough at that time before a defendant has filed its answer for the court to determine.

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