WHERE WE ARE Complaint Answer 12(b) Motions Amended Pleadings Pre-Trial Trial & Post-Trial Appeal Reply

PLEADING Defendant’s Options Defendant’s Options Don’t answer (Default) Answer Pre-answer Motion FR 12(b)(6)

PLEADING Pre-Answer Motions & Answer Pre-answer Motions FR 12(b) Waived if omitted fr 1st Motion or answer Not waived before trial Never waived PJ Venue Process Content or service Failure to state claim 12(b)(6) Failure to join indispensible party Subject Matter Jurisdiction

PRE-ANSWER MOTIONS Rule 12 When defenses must be raised FR 12(a) What kind of defenses may be raised FR 12(b) Consequences of failing to raise defenses FR 12(g) & (h) Miscellaneous motions FR 12(c), (e), (f)

PRE-ANSWER MOTIONS Rule 12: Key Points Raise 12(b) defenses by motion or answer 1 pre-answer motion only Pre-answer motion should include all Rule 12 defenses

PRE-ANSWER MOTIONS Rule 12: Key Points If fail to include Rule 12 defenses in pre-answer motion, (or in answer if no motion) waived unless failure to state claim/legal defense, failure to join indispensable party smj If omit non-waived defense, raise in Answer motion for judgment on pleadings, i.e. post-answer motion

PLEADING Answer Answer Denials (& admissions) FR 8(b) Counterclaims FR 13 Affirmative Defenses FR 8(c) Procedural Defenses FR 12(b)

THE ANSWER Cf. Complaints Rule 11 obligations Level of specificity Allocating elements

THE ANSWER Theme: Avoiding Surprise Zielinski v. Philadelphia Piers, p. 457 How did def answer? What was wrong with the denial? Wasn’t it accurate and justified? Practically, who is real defendant here?

THE ANSWER Theme: Avoiding Surprise Zielinski v. Philadelphia Piers, p. 457 Why didn’t pl just amend? Could pl have drafted complaint differently to avoid problem?

THE ANSWER Duty to Admit p. 463 Note 5 Complaint alleges B has not had his car serviced for past 2 years True, but B knows impossible for A to prove it

THE ANSWER Duty to Admit p. 463 Note 5 Complaint alleges Al was running north (same direction Bo was driving). Bo does not doubt this is true, but did not actually see Al running

THE ANSWER Duty to Admit p. 463 Note 5 Complaint alleges Al was running north (same direction Bo was driving). Bo does not doubt this is true, but did not actually see Al running Same, except Lis, friend of Al told Bo he was standing 20 feet away and saw Al running north

THE ANSWER Affirmative Defenses Layman v. Southwestern Bell, p. 463 Comfortable with result? What if: pretrial proceedings made clear Bell planning to introduce evidence of easement?

THE ANSWER Affirmative Defenses p. 466 Note 4: Examples a. Act of God b. Avoid hitting child c. Faking injury d. Negligence of 3 rd party e. Contribution to capital f. Expenses of performing contract

TAKEAWAYS 3 ways to respond & consequences Default Motion to dismiss Answer

TAKEAWAYS Waivability of 12(b) motions PJ, process, venue – waived 12(b)(6), indispensible party – preserve SMJ – never waived

TAKEAWAYS Answers Content Admissions/denials Affirmative Defenses 12(b) Defenses Counterclaims

TAKEAWAYS Big Themes Rule 11 & avoiding surprise Procedural design How much weight should pleadings bear?