When a party is sued, they often want to make the lawsuit go away. One of the most common ways of attempting to get rid of a lawsuit is a motion to dismiss for failure to state a claim upon which relief can be granted under North Carolina Rule of Civil Procedure 12(b)(6). A recent case from the North Carolina Court of Appeals illustrates how this procedural tool works and provides a lens to examine a tension within the rule. In Legal Impact for Chickens v. Case Farms, LLC, ___ N.C. App. ___, COA24-673, (May 21, 2025), a poultry producer filed a Rule 12(b)(6) motion to dismiss the complaint of an animal rights group. At the same time, it answered the allegations in the animal rights group’s lawsuit.
First, some basics. A lawsuit in North Carolina begins with the filing of the complaint. Rule 3. The complaint tells a story about harm that the plaintiff suffered at the hands of the defendant and asks the court for a remedy. Rule 8(a)(1) and (2). Once the complaint has been filed, the clerk of superior court issues the summons, and ordinarily the defendant is served with both the summons and a copy of the complaint. Rule 4. Once service is complete, the defendant has some options. It can file a motion to dismiss. Rule 12(b). It can file an answer. Rule 7(a). It can file a counterclaim. Id. It can file all three. Or it can do nothing. Rule 55(a).
While Rule 12 authorizes a number of motions and defenses, this post focuses on the Rule 12(b)(6) motion: when can a party make it, how can it be heard by the trial court, what standard the trial court applies, and what scope of materials the trial court considers in ruling on the motion.
Testing the sufficiency of the complaint
If a complaint tells a story about some harm, then a Rule 12(b)(6) motion points out that the story does not add up to a legal claim. Legal Impact for Chickens shows how this works in practice.
This case concerns a company that raises chicks, ships them to affiliate farms, and eventually takes back the grown broiler chickens for slaughter and processing into meat for human consumption. A nonprofit organization created to protect the rights of animals filed a civil complaint alleging cruelty to those chicks and chickens under the Protection of Animals Act (PAA), G.S. 19A-1. et seq. The PAA grants any person the ability to seek a court order called an injunction. See Rule 65. Specific injunctions under the PAA can include a court order that animals be taken away from the defendant and put in the care of the plaintiff, either temporarily under G.S. 19A-3(a) or permanently under G.S. 19A-4(b). Defendants in PAA cases may also be enjoined, here meaning forbidden, “from acquiring new animals for a specified period of time.” G.S. 19A-4(b). The PAA does not apply to “[l]awful activities conducted for the primary purpose of providing food for human or animal consumption.” G.S. 19A-1 (3).
In this case, the company filed a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. In essence, the company said to the court that even if everything in this complaint is true, the court has no power to grant the plaintiff an injunction because the company raises animals for human consumption and therefore the PAA does not apply to the company’s activities. The trial court agreed with the company and the court of appeals affirmed the trial court’s order dismissing the case. According to the Court of Appeals, the plaintiff’s allegations could not state a legal claim because the company engaged in its activities to provide food for humans.
I want to pause here and note that the company denied many of the allegations in the complaint but also that it did not have to do so to succeed on its Rule 12(b)(6) motion to dismiss. This motion does not depend on denials contained in a defendant’s answer but only on the allegations in the complaint. “A motion to dismiss made pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint.” Sanders v. State Pers. Comm’n, 197 N.C. App. 314, 319 (2009) (internal citations omitted). The question on a motion to dismiss under Rule 12(b)(6) is “whether the allegations of the complaint, if treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.” Legal Impact for Chickens, Slip Op. at 7 (quoting Bridges v. Parrish, 366 N.C. 539, 541 (2013)).[1] Now that we have examined the substantive standard a trial court applies to this defense, let’s look at how this defense is brought before the court.
Pleading or motion?
The text of Rule 12(b) states that “[e]very defense, in law or fact, to a claim … shall be asserted in the responsive pleading … except the following defenses may at the option of the pleader be made by motion … (6) Failure to state a claim upon which relief can be granted[.] … motion making any of these defenses shall be made before pleading if a further pleading is permitted.”
In civil litigation, pleadings and motions are two broad categories of requests filed with the court. A pleading “sets forth or responds to allegations, claims, denials, or defenses.” Black’s Law Dictionary (12th ed. 2024). A motion asks “a court to make a specified ruling or order,” id., and a Rule 12(b)(6) motion is a special type called a dispositive motion—one that asks a court to decide a claim or case before trial.
The rule is clear that a defense of failure to state a claim upon which relief can be granted can be raised by motion. But the rule also states that this defense may be raised in a responsive pleading. In this case, the responsive pleading is the answer. Rule 7(a). So if a complaint arguably fails to state a claim, the answer may raise this defense.
A defendant may have tactical reasons to file only a Rule 12(b)(6) motion and not an answer. For one, a defendant can calendar a motion to dismiss on five days’ notice to the plaintiff under Rule 6(d), meaning it can be a quick way to get into court if the defendant thinks it might succeed. If it does succeed on its motion and the complaint is dismissed, a defendant need not file an answer at all, and need not take a position in the public record on any of the allegations in the complaint. But there are risks. A plaintiff has the right to amend its complaint to avoid a motion to dismiss filed without an answer. Rule 15(a). If the defendant files the answer as well as the motion to dismiss, then the plaintiff must ask the court’s permission or consent of the defendant to amend its complaint. Id.
Another possibility is that the defendant files an answer but elects not to make a Rule 12(b)(6) motion. In that instance, Rule 12(b) goes on to say that a “[t]he consequences of failure to make such a motion shall be as provided in sections (g) and (h).” Rule 12(g) concerns some defenses that are can no longer be raised if a defendant fails to make them in a pre-answer motion or in the answer itself, but failure to state a claim upon which relief can be granted is not one of them. Rule 12(h)(2) clarifies that it is a defense that “may be made in any pleading permitted or ordered under Rule 7(a), or by a motion for judgment on the pleadings, or at trial on the merits.”
The Tension in Rule 12(b)
Wait a minute. Rule 12(b) says that a “motion making any of these defenses shall be made before pleading” but Rule 12(h)(2) says that a party can raise this defense in any pleading, in a motion for judgment on the pleadings, or even at trial. So which is it? Must a Rule 12(b)(6) motion come before the pleading or not?
The North Carolina Supreme Court has stated that “[w]hen a pleader has failed to state a claim upon which relief can be granted, his adversary is now permitted by Rule 12(b)(6) to assert this defense either in a responsive pleading or by motion to dismiss.” Forrester v. Garrett, 280 N.C. 117, 119 (1971). While litigators commonly think of Rule 12(b)(6) as a provision of the rules authorizing the defense by motion, the court in Forrester makes clear that Rule 12(b)(6) also authorizes the defense to be contained within a pleading. Since the adoption of the North Carolina Rules of Civil Procedure in 1970, “[u]nquestionably, a motion to dismiss for failure to state a claim upon which relief may be granted, under Rule 12(b)(6), can be made as late as trial upon the merits.” Dale v. Lattimore, 12 N.C. App. 348, 350 (1971). But the question before the court in Dale was not whether a Rule 12(b)(6) motion filed after the answer and before trial was timely. The Dale court was asked to decide whether a Rule 12(b)(6) motion could be made for the first time on appeal—and held that it could not. Id at 349. A later Court of Appeals Opinion stated that “a motion under Rule 12(b)(6) must be made prior to or contemporaneously with the filing of the responsive pleading.” Robertson v. Boyd, 88 N.C. App. 437, 440 (1988). The court in Robertson is saying that if a defendant wants to file a Rule 12(b)(6) motion to test the sufficiency of the complaint, it must do so before answering or at the same time as answering. That might seem to be at odds with the court’s holding in Dale, but Rule 12(h)(2) provides some context: failure to state a claim upon which relief can be granted can be raised in other motions than a Rule 12(b)(6) motion, for instance, a motion for judgment on the pleadings under Rule 12(c). And Rule 12(c) states that under some circumstances the court must convert it to a motion for summary judgment.
In Legal Impact for Chickens, the defendants filed the motion to dismiss and answer in the same document, leading with the motion to dismiss on the first page. Whether this means that the motion to dismiss was filed before the answer or contemporaneously with it is unclear and might depend on local rules. The trial court considered the filing as a Rule 12(b)(6) motion and decided the motion based on the allegations of the complaint alone. In a future post I will discuss how a Rule 12(b)(6) motion filed after the answer might be converted into a different dispositive motion.
[1] This is the standard in North Carolina state courts. For more on the different pleading standard in federal court, see this On the Civil Side post by Emily Turner.