Pleadings - Pre-Answer Motions Flashcards
R.12(b) defenses
Motions to dimiss for
- lack of subject-matter jurisdiction
- lack of personal jurisdiction
- improper venue
- insufficient process
- insufficient service of process
- failure to state a claim upon which relief can be granted
- failure to join a party
Motion to dismiss pneumonic
Small PJs Visibly Plump Someone Struggling to Join
How must D request court order? What rule?
Must be made by motion
R.7(b)(1)
What is the deadline for motion? What rule?
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)
What will the court examine in a motion to dismiss for failure to state a claim? What rule?
Whether well-pleaded allegations plausibly show P is entitled to relief
R.12(b)(6)
What will the court assume in a motion to dismiss for failure to state a claim? What rule?
Assume all well-pleaded allegations are true
R.12(b)(6)
If court denies motion, when must response be served? What rule?
Within 14 days after notice of court’s action
R.12(a)(4)
If court grants motion for more definite statement, when must response be served? What rule?
Within 14 days after more definite statement is served
R.12(a)(4)
When must defenses be asserted?
In responsive pleading
R. 12(b)
What defenses do not need to be asserted in responsive pleading to be preserved? What rule?
- Lack of subject matter jurisdiction
- Failure to state a claim
- Failure to join a party
R.12(b)(1), (6)(7)
How and when must pre-responsive pleading defenses be asserted? What rule?
In a motion before responsive pleading
R.12(b)
When can motion for judgment on pleading be made? What rule?
After pleading but early enough to not delay trial
R.12(c)
What motions are converted to summary judgment if matters outside of pleadings are presented? What rule?
R.12(b)(6) motion for failure to state a claim
R.12(c) motion for judgment on pleadings
R.12(d)
What happens when party brings matters outside of pleadings in motion for failure to state a claim or judgment on pleadings? What rule?
Treated as R.56 motion for summary judgment
R.12(d)
Why would a party make a motion for more definite statement? What rule?
Pleading is so vague or ambiguous that party cannot reasonable prepare response
R.12(e)
When must motion for more definite statement be made? What rule?
Must be made before response
R.12(e)
What must motion for more definite statement do? What rule?
Point out defects complained of and details desired
R.12(e)
If court order more definite statement and one is not served within 14 days, what happens? What rule?
Court may strike pleading
R.12(e)
If court orders, how long does a party have to serve more definite statement? What rule?
Within 14 days after notice of order or within time set by court
R.12(e)
When can motion to strike be made? What rule?
Within 21 days after being served
R.12(f)
Can a court order a motion to strike sua sponte? What rule?
Yes
R.12(f)
What are the five grounds for motion to strike? What rule?
- Insufficient defense
- Redundant matter
- Immaterial matter
- Impertinent matter
- Scandalous matter
R.12(f)
Can motion under R.12 be joined with other R.12 motions?
Yes
R.12(g)
What happens is a court determines there is a lack of subject matter jurisdiction? What rule?
Must dismiss
R.12(h)
When can failure to state a claim or legal defense be raised? What rule?
- In any pleading
- By a motion
- At trial
R.12(h)
When must R.12(b)(1)-(7) defenses be heard, with three exceptions? What exceptions? What rule?
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)
What must an allegation be to be stricken by court? What rule?
Outrageous
R.12(f)
When is a motion for more definite statement granted? What rule?
Granted only when pleading is so vague or ambiguous that part cannot reasonably prepare a response
R.12(e)
What are two examples where motion for more definite statement would be granted?
- Shotgun complaint
2. Barebones complaint
Shotgun complaint
Fails to adequately link a cause of action to its factual predicates
Barebones complaint
Very few facts, fails to allege facts or even cause of action
What is the waiver trap? What rule?
If you don’t include a R.12(b) motion in first motion or response, you waive it
R.12(g)(2)
What are the exceptions to the waiver trap?
- Subject matter jurisdiction
- Failure to state a claim
- Failure to join a party
How can R.12(b) defenses be preserved? What rule?
Put them in answer or motion to dismiss, whichever is filed first
R.12(h)(1)
