Dismissals and Rule 12 Motions Flashcards
What rule governs how to present defenses?
FRCP 12(b).
What does FRCP 12(b) state?
FRCP 12(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
What rule governs dismissal of actions?
FRCP 41.
What does FRCP 41 state?
FRCP 41. Dismissal of Actions
(a) VOLUNTARY DISMISSAL
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Except as provided n Rule(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
(b) INVOLUNTARY DISMISSAL; EFFECT. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
(c) DISMISSING A COUNTERCLAIM, CROSSCLAIM, OR THIRD-PARTY CLAIM. – Not included.
(d) COSTS OF A PREVIOUSLY DISMISSED ACTION. – Not included.
What do Rules 12(b)(1)-(7) use for their record for decision?
Rules 12(b)(1)-(7) use the complaint as their record for decision.
What does Rule 12(c) use for its record for decision?
Rule 12(c) uses all pleadings as its record for decision.
What does Rule 12(d) use for its record for decision?
Rule 12(d) uses the full record of evidence as its record for decision.
What does Rule 12(h) dictate?
Rule 12(h) dictates that if you answer without raising a Personal Jurisdiction, Venue, Process, etc. issue, then you are waiving each respective issue not raised and consenting to the case as-is.
