Pleadings & Motions

Question 1

What are the §12(b) defenses?

Answer 1

Insufficient Imps Fail

Insufficient process or service
Improper court (SMJ, PJ, venue)
Failure to state a claim or join a required party

Question 2

Which defenses may be raised at any time?

Answer 2

1. Subject matter jurisdiction under §12(b)(1)
2. Failure to state a claim on which relief can be granted under §12(b)(6)

Question 3

When may a complainant amend a complaint?

Answer 3

1. Once as a matter of course within 21 days of service or 21 days after service of a resopnsive pleading or motion under 12(b), (e), or (f) pursuant to 15(a)(1)(B);
2. When no bad faith or prejudice to parties after 21 day period, granted freely and in the interests of justice. If D will have ample time to respond, there is often no prejudice.

Question 4

FRCP 8(a) - General Rules of Pleading: Claim for Relief

Answer 4

1. Short and plain statement on grounds of court’s jurisdiction;
2. Short and plain statement of claim showing pleader is entitled to relief; and
3. Demand for relief sought.

Question 5

To change an answer based on issue preclusion (because of an action in a state court) occurring after the original answer was already filed, how should defendant respond?

Answer 5

By filing a motion to serve a supplemental answer asserting the state court judgement as preclusive of the claim in federal court (such as a breach of contract) because the original answer had already been filed.

Thus, an amendment under Rule 15(a)(2) would not be available, so D must

Question 6

What is the grace period for a Rule 11 motion?

Answer 6

21 days

The receiving party has a 21 day grace period to correct the error.

Question 7

Is relation back permitted to add a defendant, absent a mistake by the plaintiff, after the statute of limitations has tolled?

Answer 7

No. Rule 15(c)(1)(C)(ii) involves changes a party or a party name. It requires that, for a proprosed amendment to relate back to the original filing date, the failure to name a party originally must have been due to a mistake.

Question 8

FRCP Rule 15(c). Relation Back of Amendments.

Answer 8

1. Law allows under applicable state statute of limitations;
2. Amendment asserts a claim or defense arising out of the same transaction or occurrence; and
3. Service was timely, additional party received notice within 90 days per 4(m), will not be prejudiced, and knew or should have known the action would have been brought against it, but for a mistake by P concerning the party’s identity.

Question 9

What is the appropriate vehicle for legally insufficient affirmative defenses?

Answer 9

Motion to strike under 12(f) - E.g., D asserts an invalid affirmative defense (such as assumption of risk by 13-year-old P where state law precludes AoR for Ps 14 or under). The case will then proceed based on manufacturer’s other denials in the answer.

Question 10

Must Rule 11 sanctions be made separately from any other motion?

Answer 10

Yes. A court will not grant Rule 11 sanctions where they are not made pursuant to separate motion (e.g., motion to dismiss for failure to state a claim concurrently with Rule 11 sanctions would preclude Rule 11 sanctions).