Responding to the complaint

Question 1

When is a defendant required to respond to a complaint?

Answer 1

A. 21 days after being served with complaint per rule 12(a)(1)(A)(i); or
B. 60 days if service was waived; or 90 days if complaint served on defendant outside U.S. per 12(a)(1)(A)(ii).

Question 2

How can a defendant respond to a complaint?

Answer 2

A motion under Rule 12, an answer under Rule 8(b), or both.

Question 3

Motions to dismiss under 12(b)

Answer 3

1. Rules 12(b)(2)-(5): Use or lose
2. 12(b)(1), (6), (7) cannot be waived if not joined in one document per Rule 12(h)(2) and 12(h)(3)
3. 12(b)(6) triggers analysis under Conley, Swierkiewicz, Twombly, and Iqbal.

Question 4

Effect of filing a motion

Answer 4

Rule 12(a)(4)
A. Response due 14 days after notice of denial
B. If more definite statement motion granted, responsive pleading due 14 days after receiving more definite statement.

Question 5

Other Rule 12 Motions

Answer 5

12(e): More definite statement
12(f): Motion to strike
12(c): After pleadings are closed, motions 12(b)(6)-(7) become a motion for judgment on the pleadings.

Question 6

What are the only permissible answers to allegations in a complaint?

Answer 6

1. Admit allegations 8(b)(1)(B)
2. Deny allegations 8(b)(1)(B), 8(b)(2), 8(b)(3)
   i. Deny all allegations
   ii. Deny part of allegations and admit the part that is true.
3. Claim lack of knowledge or information. 8(b)(5)

Question 7

What is the effect of failing to deny?

Answer 7

8(b)(6): allegation is admitted. Judge’s discretion determines whether party has leave to amend response.

Question 8

What else may be raised in an answer besides admissions and denials?

Answer 8

1. Affirmative defenses 8(c). Do not have to meet pleading standard of Twombly and Iqbal per Lockheed v. United States.
2. Rule 12(b)(2)-(5) defenses must be in the first response to a complaint.
3. Counterclaims (R13).

Question 9

Rule from Milton v. Gen. Dynamics

Answer 9

Answer must be specific in its admissions, denials, or claims of lack of knowledge. Defendant can’t say “we’re not required to answer.”