Federal Jurisdiction & Procedure.docx

Iv 12b4 insufficient process technical defects in

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iv. 12(b)(4) insufficient process – technical defects in form or failure of process to be sealed by clerk v. 12(b)(5) insufficient service of process 1. 12(b)(2)-(5) waived unless first raised in answer or pre-answer motion; may be revived only if raised in amended answer that relates to some new matter being added in amendment. vi. 12(b)(6) failure to state a claim upon which relief can be granted – may be raised at any time; 2 standards : 1. “Legal theory not cognizable as a matter of law” – claim must be based on some actionable theory . 2. Pleaded facts not sufficient to “create a reasonably founded hope that discovery will reveal relevant evidence to support the claim” a) Court will grant motion to dismiss when legal claim not plausible ( Twombly ). b) When 12(b)(6) motion refers to matters outside the pleadings (such as an affidavit) the motion will be treated as a Rule 56 Motion for Summary Judgment. 3. Can be raised in 4 ways : (1) answer, (2) pre-answer R12(b) motion, (3) R12(c) Motion for Judgment on the pleadings (after pleadings close, or (4) R56 Motion for Summary Judgment. vii. 12(b)(7) failure to join a party under Rule 19 – may be raised at any time. 1. 12(b)(6) &(7): not waived if not raised in pretrial motion or in answer; both may be raised in a Rule 12(c) Motion for Judgment on the pleadings or at trial 2. Can be raised in 5 ways : in (1) answer; (2) pre-answer R12(b) motion; (3) R12(c) Motion for Judgment on the pleadings (after pleadings close); (4) R56 Motion for Summary Judgment; and (5) at trial. 3. Motion raising this defense may be rejected as untimely if it appears that party’s objection to absence of a party was filed late for strategic purposes .
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viii. More time to file answer if pre-answer R12(b) motion filed – serving pre-answer R12(b) Motion suspends time for serving answer until motion ruled on then ∆ has 14 days to serve the Answer. ix. Timing for filing pre-answer R12(b) motion – motion must be served within 21 days after service of complaint (or counter or cross to which motion is directed); if ∆ waived service of complaint – has 60 days to respond. 8. Rule 12(c) motion for judgment on the pleadings a. After pleadings are closed – party can assert as matter of law that complaints or answer is insufficient seek judgment on the pleadings. i. Granted – when moving party is entitled to judgment as a matter of law when accepting factual allegations of a nonmoving party as true but not their legal conclusions. ii. Denied – issue of fact remains in dispute. b. Matters outside pleadings – if court is asked to consider matters outside pleadings for either R12(b) or R12(c), court shall treat motion as one for summary judgment under Rule 56 . 9. Motions under Rule 12(e) and Rule 12(f) a. Motion for more definite statement – Rule 12(e) : when responsive pleading is so vague or ambiguous that party cannot reasonably prepare a response to it.
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  • Spring '14
  • CatherineLacroix
  • Common Law, Supreme Court of the United States, federal court, SMJ

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