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

2. 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.

3. 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)

4. 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?

5. 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?

6. 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?

7. 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

8. 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.

9. 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!

10. 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?

11. 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?

12. 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?