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AMENDED 12b defenses[1] - unless Amendment is filed “as a...

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H OW AND W HEN TO P LEAD THE R ULE 12(b) D EFENSES Is the defense 12(b): (2) Lack of personal jurisdiction? (3) Improper venue? (4) Insufficient process? (5) Insufficient service of process? Yes No Then any and/or all of these defenses must be presented either: In one motion filed with the court before ) ’s Answer is due; or, if ) chooses not to file a pre-answer motion , In ) ’s Answer (but these defenses cannot be filed in ) ’s Answer if ) has filed a pre-answer motion that omitted any such defenses) If ) fails to do either of the above, then ) waives such defenses (i.e., ) cannot assert them in a post-answer motion, a Motion for Judgement on the Pleadings (12(c)), or at trial Also, ) cannot amend a previously filed Answer to include such defenses
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Unformatted text preview: unless Amendment is filed “as a matter of course” pursuant to Rule 15(a)(1)(B) Is the defense 12(b): (6) Failure to state a claim upon which relief can be granted? (7) Failure to join a party under Rule 19? Yes No Then ) may raise either (or both) defense(s): • In a pre-answer motion (along with those defenses above (12(b)(2-5)); • In its Answer, regardless of whether it filed a pre-answer motion; • In a 12(c) motion (Motion for Judgment on the Pleadings); or • At trial Is the defense 12(b): (1) Lack of subject matter jurisdiction? Yes No Then ) may raise the defense at any time in any manner Defense is not subject to Rule 12, but ) may need to plead as affirmative defense (Rule 8(c))...
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