Pleadings - Pre-Answer Motions

Question 1

R.12(b) defenses

Answer 1

Motions to dimiss for

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
7. failure to join a party

Question 2

Motion to dismiss pneumonic

Answer 2

Small
PJs
Visibly
Plump
Someone
Struggling to
Join

Question 3

How must D request court order? What rule?

Answer 3

Must be made by motion

R.7(b)(1)

Question 4

What is the deadline for motion? What rule?

Answer 4

Within 21 days after being served, unless service is waived, then 60 days after request for waiver or 90 days for non-U.S. D

R.12(a)(1)

Question 5

What will the court examine in a motion to dismiss for failure to state a claim? What rule?

Answer 5

Whether well-pleaded allegations plausibly show P is entitled to relief

R.12(b)(6)

Question 6

What will the court assume in a motion to dismiss for failure to state a claim? What rule?

Answer 6

Assume all well-pleaded allegations are true

R.12(b)(6)

Question 7

If court denies motion, when must response be served? What rule?

Answer 7

Within 14 days after notice of court’s action

R.12(a)(4)

Question 8

If court grants motion for more definite statement, when must response be served? What rule?

Answer 8

Within 14 days after more definite statement is served

R.12(a)(4)

Question 9

When must defenses be asserted?

Answer 9

In responsive pleading

R. 12(b)

Question 10

What defenses do not need to be asserted in responsive pleading to be preserved? What rule?

Answer 10

1. Lack of subject matter jurisdiction
2. Failure to state a claim
3. Failure to join a party

R.12(b)(1), (6)(7)

Question 11

How and when must pre-responsive pleading defenses be asserted? What rule?

Answer 11

In a motion before responsive pleading

R.12(b)

Question 12

When can motion for judgment on pleading be made? What rule?

Answer 12

After pleading but early enough to not delay trial

R.12(c)

Question 13

What motions are converted to summary judgment if matters outside of pleadings are presented? What rule?

Answer 13

R.12(b)(6) motion for failure to state a claim
R.12(c) motion for judgment on pleadings

R.12(d)

Question 14

What happens when party brings matters outside of pleadings in motion for failure to state a claim or judgment on pleadings? What rule?

Answer 14

Treated as R.56 motion for summary judgment

R.12(d)

Question 15

Why would a party make a motion for more definite statement? What rule?

Answer 15

Pleading is so vague or ambiguous that party cannot reasonable prepare response

R.12(e)

Question 16

When must motion for more definite statement be made? What rule?

Answer 16

Must be made before response

R.12(e)

Question 17

What must motion for more definite statement do? What rule?

Answer 17

Point out defects complained of and details desired

R.12(e)

Question 18

If court order more definite statement and one is not served within 14 days, what happens? What rule?

Answer 18

Court may strike pleading

R.12(e)

Question 19

If court orders, how long does a party have to serve more definite statement? What rule?

Answer 19

Within 14 days after notice of order or within time set by court

R.12(e)

Question 20

When can motion to strike be made? What rule?

Answer 20

Within 21 days after being served

R.12(f)

Question 21

Can a court order a motion to strike sua sponte? What rule?

Answer 21

Yes

R.12(f)

Question 22

What are the five grounds for motion to strike? What rule?

Answer 22

1. Insufficient defense
2. Redundant matter
3. Immaterial matter
4. Impertinent matter
5. Scandalous matter

R.12(f)

Question 23

Can motion under R.12 be joined with other R.12 motions?

Answer 23

Yes

R.12(g)

Question 24

What happens is a court determines there is a lack of subject matter jurisdiction? What rule?

Answer 24

Must dismiss

R.12(h)

Question 25

When can failure to state a claim or legal defense be raised? What rule?

Answer 25

1. In any pleading
2. By a motion
3. At trial

R.12(h)

Question 26

When must R.12(b)(1)-(7) defenses be heard, with three exceptions? What exceptions? What rule?

Answer 26

Heard and decided before trial, unless court orders deferral
except for
1. failure to state a claim 
2. fail to join a party
3. failure to state a legal defense

R.12(i)

Question 27

What must an allegation be to be stricken by court? What rule?

Answer 27

Outrageous

R.12(f)

Question 28

When is a motion for more definite statement granted? What rule?

Answer 28

Granted only when pleading is so vague or ambiguous that part cannot reasonably prepare a response

R.12(e)

Question 29

What are two examples where motion for more definite statement would be granted?

Answer 29

1. Shotgun complaint

2. Barebones complaint

Question 30

Shotgun complaint

Answer 30

Fails to adequately link a cause of action to its factual predicates

Question 31

Barebones complaint

Answer 31

Very few facts, fails to allege facts or even cause of action

Question 32

What is the waiver trap? What rule?

Answer 32

If you don’t include a R.12(b) motion in first motion or response, you waive it

R.12(g)(2)

Question 33

What are the exceptions to the waiver trap?

Answer 33

1. Subject matter jurisdiction
2. Failure to state a claim
3. Failure to join a party

Question 34

How can R.12(b) defenses be preserved? What rule?

Answer 34

Put them in answer or motion to dismiss, whichever is filed first

R.12(h)(1)