Responding to the Complaint

Question 1

Possible Responses

Answer 1

1. Do Nothing - Note Default Rules (55)
2. Pre-Answer Motion - Rule 12 (b)
3. Answer - Rule 8 (b) and 12 (b)

Question 2

Rule 7(a) - Pleadings Allowed

Answer 2

1. Complaint
2. Answer to a complaint
3. Answer to a counterclaim designated as such
4. Answer to a crossclaim
5. Third-party complaint
6. Answer to a third-party complaint
7. If the court orders one, a reply to an answer

Question 3

Rule 7(b) - Motions and Other Papers

Answer 3

1. A request for a court order must be made by motion. The motion must:

(A) Be in writing unless made during a hearing or trial;

(B) State with particularity the grounds for seeking the order; and

(C) State the relief sought.

Question 4

Rule 12(a) - Time Limits for Responses

Answer 4

Unless another time is specified:

(A) A Defendant must serve an answer

(i) Within 21 days after being served with the summons and complaint; or
(ii) If the def has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, (or within 90 days if the Def is foreign)

(B) and (C) 21 days to serve answer to counterclaim, crossclaim, or reply

US and its agencies and employees have 60 days

Extensions may be granted under Rule 6

Question 5

12(b) and 12(a)(4) - Time Limits for Pre-Answer

Answer 5

12(b): A party may assert these defenses by motion; if so, the motion must be made before pleading if a responsive pleading is allowed. Remember waiver rules.

12(a)(4): Effect of a motion: if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action

Question 6

Service of Response and Other Filings

Answer 6

More Relaxed Standard

Governed by Rule 5 - Serving and Filing Pleadings and Other Papers
(Rule 4 governs service of summons and complaint)

Rule 5(b)(2)(E) allowing service by electronic means if parties agree

Question 7

Other Rule 12 Motions

Answer 7

12(e) Motion for More Definite Statement

• Only applies to pleadings to which a response is permitted
• Not typical any longer, given liberal requirements of Rule 8

12(f) Motion to Strike
-May be directed at any pleading

12(c) Motion for Judgment on the Pleadings

• May be made by either party
• Different from 12(b)(6), which is judgment based solely on the complaint

Question 8

12(g) - Joining Motions

Answer 8

(1) Right to join. A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on further motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

Question 9

Rule 12(h) - Waiver

Answer 9

4 Defenses are waived if not brought in the initial response to the complaint

Failure to state a claim or defense and failure to join an indispensable party are not waived, and may be brought in the answer, or by motion for judgment on the pleadings, or at trial

Lack of subject matter jurisdiction is never waived, and may be brought later, including on appeal