Pre-Answer Motions

12(b)(1) Subject Matter Jurisdiction Should have been in state rather than federal court 12(b)(2) Personal Jurisdiction This court does not have power (geographically) to reach this D 12(b)(3) Venue Case should be in different federal court (District or Division) 12(b)(4) Insufficient Process Your summons was defective 12(b)(5) Insufficient Service of Process Your summons was not properly served on the D 12(b)(6) Failure to state a claim So What? (Even if you prove what you plead, you would still lose) 12(b)(7) Failure to join a R 19 Party You cannot proceed unless you add a party required under R 19

Never Waived (Most Favored) 12(b)(1) – SMJ Grouping Them By Waiver Can be raised at trial but not on appeal (Favored) 12(b)(6) – Failure to state a claim 12(b)(7) – Failure to join party Waived Unless Raised (Disfavored) 12(b)(2) – PJ 12(b)(3) – Venue 12(b)(4) – Insufficient Process 12(b)(5) – Insufficient Service

How Do You Have to Raise a Disfavored Defense to Avoid Waiving It? Raise it in your pre-answer motion, or If you file no pre-answer motions, Raise it in your answer.

D files a pre-answer 12(b)(5) 15 days later, D realizes he has a 12(b)(3) – improper venue 12(b)(7) – failure to join party What can D do? 12(b)(3) Nothing! It’s waived. 12(b)(7) Raise it in answer or Post answer motion (12(c)), or At trial

D files a pre-answer 12(b)(3) -- Denied D files an answer 6 months later, realizes that court has no smj (12(b)(1)) What can D do? Raise it in Post Answer Motion Motion for leave to file Amended Answer Motion for Summary Judgment At trial Subject Matter Jurisdiction is Never Waived

D files an answer on the merits 4 weeks later D realizes he has good 12(b)(5) – insufficient service 12(b)(6) – failure to state a claim Can he raise these defenses if the court permits an amended answer? 12(b)(6) Yes or in post-answer motion. 12(b)(5) No Only in an amendment permitted “as a matter of course”

Answering Allegations

Admit: D admits each and every allegation in ¶ 4 of the complaint. Deny: D denies each and every... NSI: D does not have information sufficient to form a belief as to the truth or falsity of the allegations of ¶ 4 and therefore denies those allegations. How do you respond to an allegation?

General Admission/Specific Denial: D denies that [whatever] and admits each and every other allegation in ¶ 4 of the complaint. General Denial/Specific Admission: D admits that [whatever] and denies each and every other allegation in ¶ 4 of the complaint. Breaking Up Is Not Hard to Do?