Pleadings & Motions

Question 1

Are affirmative defenses waived if not explicitly pleaded in the answer?

Answer 1

Yes, if an affirmative defense is not pleaded in the answer it will be waived. Also, they do not need to be labeled as affirmative defenses in the answer either.

Question 2

What is the deadline to file an answer?

Answer 2

21 days after service of process.

Question 3

What is the deadline to answer after a Rule 12 motion?

Answer 3

Must file an answer 14 days after filing a rule 12 motion.

Question 4

Rule 12 Main Defenses

Answer 4

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficiency of Process
5. Insufficient service of process
6. Failure to State a Claim.
7. Failure to Join Necessary Party

Question 5

Four Defenses that are Waived if they are not used?

Answer 5

1. Lack of PJ
2. Improper Venue
3. Insufficiency of Process
4. Insufficient service of Process

Question 6

Amending Pleadings— “As of Right”

Answer 6

As of Right:

(1) within 21 days of service of complaint; or

(2) within 21 days of service of a pre answer pleading/motion

Question 7

Amending Pleadings— “Without Right”

Answer 7

1. Consent; or
2. Leave of Court

Question 8

Amending Pleadings—Relation Back

Answer 8

When a P wants to add a new D or claim but the statute of limitations have run. Requirements are different for each.

Question 9

Relation Back — New Claim

Answer 9

Must arise from same transaction or occurrence.

Question 10

Relation Back — New D or substitute D

Answer 10

1. Same conduct, transaction, or occurrence; and
2. New D knew or should’ve known or knew and got notice of the action.