40. Is the court likely to grant the director's motion?

Motions are typically contained in papers that separate from the pleadings. They can be heard and/or decided separately from the merits of the case, or on certain occasions, heard at the time of trial and disposed of then.

Certain defenses may be raised either in the answer or by motion. These defenses are known as Federal Rule of Civil Procedure (FRCP) 12(b) defenses. They are directed solely at the pleadings and must be decided solely by reference to them.

If the defendant believes that the plaintiff's complaint does not state a legally sufficient claim, the defendant can make an FRCP 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For this motion to be successful, it must demonstrate that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.

B is correct. The standard for granting a motion to dismiss for failure to state a claim upon which relief can be granted is that if every fact asserted is taken as true and the plaintiff still has no plausible recovery under any legal theory, the claim should be dismissed.

Here, the writer claimed that the director plagiarized his work. Under the standard for a motion to dismiss, the court will have to assume the director did actually plagiarize, as the writer is claiming, and this would certainly provide a legal theory on which the writer could recover. As such, the court will likely deny the director's motion for failure to state a claim upon which relief can be granted.

A is incorrect. The writer filed a plagiarism complaint, which inherently identifies the legal theory (plagiarism) that is the basis of the claim.

C is incorrect. The writer filed a plagiarism claim, «alleging that, without giving credit to the writer, the director intentionally plagiarized the screenplay for his new hit movie from the writer's unpublished manuscript.» Based on these facts, the writer did identify the legal theory that is the basis of his claim.

D is incorrect. The FRCP do not require the claimants to plead «facts constituting a cause of action.» Instead, the Rules only require that each complaint contain a short statement of the grounds for the court's jurisdiction, a short statement of the grounds that show the pleader is entitled to relief, and a demand for the judgment for relief. While the pleading standard for federal courts has made it easier for judges to dismiss claims for failure to state a claim upon which relief can be granted, the movant still needs to show that the plaintiff's complaint, even when every fact is taken as true, has no plausible remedy.

Here, it is apparent that there is still discovery left to be done before a judge can hold that the plaintiff has not stated a claim upon which relief can be granted.