CIVIL PROCEDURE CLASS 9 Professor Fischer Columbus School of Law The Catholic University of America Sept. 16, 2002

WRAP-UP OF LAST CLASS  You should be familiar with the procedure for and advantages of waiving service under FRCP 4(d)  You should know what a motion is (see Rule 7(b))  You should understand how and why a party makes a pre-trial motion to dismiss under FRCP 12(b), a 12(e) motion or a 9(b)( motion  You should understand what the moving party must prove to succeed on a Rule 12(b)(6), Rule 9(b), and 12(e) motion.

WHAT WILL WE DO TODAY?  We will discuss Practice Exercise 7 on the merits of Rule 12(b)(6) and 12(e) motions in Carpenter v. Dee  Then we will discuss other kinds of 12b motions and waiver and consolidation rules for Rule 12 defenses under Rule 12(g) and 12(h)

Rule 12(b)(6) Motion in Carpenter v. Dee  What arguments might Nancy make in response to this motion?  How do you think the judge should rule on the motion? Why?

Rule 12(e) Motion in Carpenter v. Dee  What arguments might Nancy make in response to this motion?  How do you think the judge should rule on the motion? Why?

Other Kinds of Rule 12 Motions  Other than a Rule 12(b)(6) and 12(e) motion, what other kinds of pre-answer motions are provided for under Rule 12?

Other Kinds of Rule 12 Motions  12(b)(1) - lack of subject matter jurisdiction  12(b)(2) - lack of personal jurisdiction  12(b)(3) - improper venue  12(b)(4) - insufficiency of process  12(b)(5) - insufficiency of service of process  12(b)(7) - failure to join necessary party  12(c) - motion for judgment on the pleadings

HYPO  Pooh is served with a complaint in a federal civil action brought by Piglet. Pooh makes a pre-trial 12(b)(2) motion for lack of personal jurisdiction, and loses. In preparing his Answer, Pooh wants to include a defense that service of process was invalid under the FRCP because it was made by first-class mail. Please advise Pooh as to whether he can include this defense in his answer.

DANGER OF WAIVER  Certain Rule 12 defenses may be waived if party does not follow the requirements in Rule 12 (g) and (h)  THIS IS AN AREA WHERE IT IS EASY FOR LAWYERS TO MAKE MISTAKES WITH SERIOUS CONSEQUENCES, SO PAY ATTENTION CAREFULLY!

USE IT OR LOSE IT  FRCP Rule 12(g), 12(h)  Which types of 12(b) defenses can be waived? (see 12(h)(1) and (2))  How can a D lose the right to make these 12(b) defenses?  Are there any exceptions?  What is the purpose of the consolidation and waiver provisions?

Subject Matter Jurisdiction  What does Rule 12(h)(3) provide?  Why do you think that subject matter jurisdiction receives this special treatment under the FRCP?

JAWS HYPO  Mary is the mother of Sam, a young swimmer who was eaten by a shark while swimming at Duck town beach off the Outer Banks. Mary sues the Mayor of Duck in a North Carolina federal district court for wrongful death based on negligent failure to install and maintain shark nets. The Mayor makes a pre-trial motion for lack of personal jurisdiction and loses. His attorney advises him to make another motion for failure to state a claim under Rule 12(b)(6). Procedurally, is this good advice? Why or why not?