PAMnotes - Pre-answer Motions o Rule 12: Ds Answer/Motions...

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Pre-answer Motions o Rule 12: D’s Answer/Motions Timing of Answer: D usually has 20 days to answer. May be extended to 60 days (90 days if outside the US) as a reward for waiving service. Govt. has 60 days. (b) 7 Defenses that can be made by pre-answer motions!!! B1: Lack of SMJ B2: Lack of IPJ over D B3: Improper Venue B4: Insufficiency of process: complaint is deficient. B5: Insufficiency of service of process: service was deficient. B6: Failure to state a claim upon which relief may be granted (non-procedural motion). B7: Failure to join a necessary party: must join or dismiss the suit. (c) Motion for judgment on the pleadings: If on a motion for judgment on the pleadings, matter outside the pleadings is presented the Court may choose to view motion as one for summary judgment under Rule 56. (e) Motion for a more definite statement: Party may move for clarification of the pleading before responding. o Consolidation : all Rule 12 defenses must be asserted together or waived b/c D only gets 1 Rule 12 motion. Disfavored defenses : 12(b) (2, 3, 4, &5) must be raised the first time D speaks to the Court or they are waived. Favored defenses : 12(b)(6 & 7) can be raised in a pre-answer motion, in the answer, in motion practice, even during the trial. Waived only after judgment in a trial on the merits. Most favored defense : 12(b)(1) can be raised at any time, even on appeal. 1. . Defendant’s Response 1. Pre-answer motions under Fed. R. Civ. P. 12 1. Δ has 20 days to answer, if he waives service, he gets 60, if he’s not in the U.S., he gets 90.
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This note was uploaded on 01/10/2011 for the course LAW Civ Pro taught by Professor Arkin during the Spring '10 term at Fordham.

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PAMnotes - Pre-answer Motions o Rule 12: Ds Answer/Motions...

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