Partners Lauren A. Ormsbee and Jesse L. Jensen and Associate Charles J. Stiene are the authors of the Law360 article “Parsing 12(c) Motion Overuse in Securities Class Actions,” which explores a growing trend in securities litigation: Defendants are increasingly filing Rule 12(c) motions for judgment on the pleadings in addition to Rule 12(b)(6) motions to dismiss, which have been a staple of Securities Exchange Act (Exchange Act) cases since the passage of the Private Securities Litigation Reform Act (PSLRA).

Since the PSLRA introduced heightened pleading standards for claims brought under the Exchange Act, defendants have routinely challenged nearly every such class action complaint with a motion to dismiss under Rule 12(b)(6), which triggers an automatic stay of discovery pending resolution of the motion.  Rule 12(c) provides a similar mechanism for challenging the sufficiency of a complaint under the Federal Rules of Civil Procedure.  While these motions are “essentially address the same analysis—the legal sufficiency of the allegations—and carry the same standard of review,” the primary distinction between them is timing: Rule 12(b)(6) motions must be filed before an answer, and Rule 12(c) motions are filed after the pleadings are closed but early enough not to delay trial.

In light of the legal overlap—and the fact that defendants almost always file Rule 12(b)(6) motions—Rule 12(c) motions in securities class actions have historically been rare.  However, the authors point to a significant increase in the number of Rule 12(c) motions filed by defendants after courts denied their Rule 12(b)(6) motions, in whole or in part, over the past five years.  This poses a critical question: “If defendants raise all of their meritorious arguments challenging the legal sufficiency of a complaint in a Rule 12(b)(6) motion . . . what is left for a Rule 12(c) motion that has not already been raised and decided?”

The answer, the authors posit, is that Rule 12(c) motions can serve as backdoor attempts to relitigate already decided issues—a “proverbial second bite at the apple”—while further delaying discovery.  The authors further suggest that defendants may be overusing Rule 12(c) motions instead of invoking the more stringent pleading standards of a reconsideration motion of the Rule 12(b)(6) opinion.

They caution, however, that “courts appear to be growing increasingly skeptical of the merits of these subsequent Rule 12(c) challenges.”  Of the 35 Rule 12(c) motions filed between 2021 and 2025, courts granted only six in full and three in part, while denying 20 outright; the remaining six were pending, withdrawn, or unresolved before settlement.  Furthermore, in several of these decisions, the courts concluded that defendants’ motions “were transparent attempts to relitigate the law of the case and seek reconsideration of the Rule 12(b)(6) opinions without invoking the heightened reconsideration elements.”  

The authors highlight a primary benefit of sequential motions under Rule 12(b)(6) and Rule 12(c) in recent years: the automatic stay of discovery under the PSLRA.  While Rule 12(c) motions are typically characterized as motions for judgment on the pleadings—not motions to dismiss—and therefore do not facially trigger the PSLRA stay, a 2012 decision from the U.S. District Court for the Eastern District of New York, Gardner v. Major Automotive Companies, held that a Rule 12(c) motion could trigger the automatic stay, adopting the novel view that such motions are effectively a species of motion to dismiss.  The authors warn that, “if unchecked, a ticket to delay discovery could be sufficient justification for defendants to file a Rule 12(c) motion, even if the motion simply relitigates already decided issues.”  However, this benefit may soon come to an end. In two 2025 decisions in the U.S. District Court for the Northern District of California, the court rejected similar attempts to extend the stay.  “Should other courts likewise depart from the expansive interpretation embraced in Gardner and reject such requests, a key benefit of Rule 12(c) motions would disappear.”

The authors conclude that the growing overuse of procedurally improper or non-meritorious Rule 12(c) motions should serve as a cautionary tale for defendants: “Courts have demonstrated an increasing willingness to reject Rule 12(c) motions that are nothing more than transparent attempts to relitigate already decided issues,” they note, warning, “defendants who pursue this strategy risk not only denial, but also pointed criticism from the bench for circumventing proper procedural channels.”