Defendant's Response: Motion to Dismiss

Question 1

What are the 8 affirmative defenses D can raise in a pre-answer MTD?

Answer 1

DOWNFALL

1. documentary evidence is a basis for defense
2. other action pending between the same parties
3. want of capacity for P to sue
4. non-joinder of a necessary party (never waived)
5. failure to state a cause of action (never waived)
6. additional affirmative defenses (SPARERIBS)
7. lack of personal jurisdiction (waived if not raised)
8. lack of subject matter jurisdiction (never waived)

Question 2

What are the additional affirmative defenses?

Answer 2

SPARE RIBS
Statute of Limitations, 
Payment (of the debt), 
Arbitration Award, 
Release,
Estoppel, 
Res judicata,
Infancy of D, 
Bankruptcy discharge, 
Statute of Frauds

Question 3

What claims can D raise in the pre-answer MTD?

Answer 3

Any and all defenses he can raise in good faith.

Question 4

If D raises one or two defenses in the pre-answer MTD are all other defenses waived?

Answer 4

No - he can raise any others in the answer.

Question 5

If the pre-answer MTD is denied, how long does D have to serve the answer?

Answer 5

10 days from the denial of the motion.

Question 6

If D pleads improper service of process, what other requirements must be met?

Answer 6

D must submit a follow-up motion for summary judgment on the grounds of improper service no later than 60 days after serving the answer.