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How are the pleadings "closed" in a federal proceeding? Is it after a scheduling order has been issued? How is it established?

Stockbridge, GA |

I have a pending federal complaint under FLRA and FDIC . I am inquiring as to when is it proper to move for judgment on the pleadings ? Is it treated as a motion for summary judgment , which can be filed at any time ? Please advise .

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Attorney answers 5

Best Answer

A motion for judgment on the pleadings can be filed at anytime, though, generally, the sooner the better. Since the Court will look ONLY at the pleadings, a motion to dismiss for failure to state a claim can be filed by a Defendant immediately after the Complaint has been filed. A motion for judgment on the pleadings will be treated by the Court like a Motion for Summary Judgment only if the moving party seeks to introduce evidence beyond what is contained in the pleadings. Summary Judgment motions are typically not filed immediately, but generally after at least some or all discovery is completed.

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Pleadings are generally closed upon the filing of a complaint and answer, unless a counterclaim,
cross-claim or third-party claim is interposed.” Progressive Cas. Ins. Co. v. Estate of Crone, 894
F.Supp. 383, 385 (D. Kan. 1995) (citing Wright and Miller, supra, § 1367, at 512). I would say the sooner you can file a 12(b)(6) motion, summary judgment, the better. Why wait to file a motion for judgment on the pleadings, 12(c), which may be late in the case and after you have spent a lot of time and money? Do yourself a big favor and retain an experienced FLRA/FDIC lawyer and you will stand a much better chance of prevailing!

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I agree with Mr. Bazunis.

Robert Bruce Kopelson

Robert Bruce Kopelson


Sorry, that is Mr. Buzunis.


I agree with the answer of atty. Buzunis. You need to know what you are doing if you are pro se, especially in the Federal District courts, and I recommend either getting an attorney qualified in your specialized area, or at the least, studying the Federal Rules of Civil Procedure, which are available online for free.

Law Offices of Robert G. Rothstein
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Mr. Fuchs' answer is quite helpful. Just to avoid any possible misunderstanding here is (I hope) a summary of the various types of motions your question may involve. A Rule 12(b)(6) motion to dismiss the complaint for failure to state a claim for relief asks the court to look at the most current Complaint and dismiss the case because even if everything the plaintiff has alleged were true, the plaintiff has no legally recognizable right to recover. This motion is most often made before filing an Answer, but the same grounds can be raised in a motion for judgment on the pleadings (Rule 12(c)) or at trial through a motion for judgment as a matter of law.

A motion for judgment on the pleadings cannot be made until the pleadings are "closed," which means that every pleading asserting a claim, counter-claim or cross-claim has been answered on the merits (i.e., not by a motion). Federal courts, by local rule or court order, usually set deadlines for "dispositive" motions well enough in advance of trial that the parties don't have to incur the expense of gearing up for trial while a motion that could end the case hasn't been decided by the court.

Very often a motion for summary judgment (which allows the court to look at facts that the parties put on the record by affidavit or declaration) will be either accompanied by or treated by the court in part as a motion for judgment on the pleadings. The Federal Rules of Civil Procedure instruct the courts to give pleadings and motions a fair latitude without particular regard to nomenclature so as to (as Rule 1 puts it) "secure the just, speedy, and inexpensive determination of every action and proceeding."

Look to your scheduling order and, as others have pointed out, seek competent legal counsel to represent you and give you specific advice and representation. In this forum we cannot do so.



Thanks for you input, it has been most helpful.