Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

Question 1

In a federal civil case, what are the primary motions that a party may bring based on the pleadings alone? (Q)

Answer 1

In a federal civil case, a party may bring several motions based on the pleadings alone. The most important of these motions are:

a motion to dismiss,
a motion for judgment on the pleadings,
a motion for a more definite statement, and
a motion to strike.

Question 2

How does serving a Rule 12 motion alter the time in which the serving party must serve its responsive pleading? (Q)

Answer 2

A party who serves a Rule 12 motion must usually do so before serving its responsive pleading. If the court denies the Rule 12 motion or postpones a ruling until trial, then the party must serve its responsive pleading within 14 days after receiving notice of the court’s denial or decision, unless the court orders a different time. If the court grants a motion for a more definite statement, then the party must serve its responsive pleading within 14 days after being served with the more definite statement, unless the court orders a different time.

The exception to this process is a motion for judgment on the pleadings, which can only be brought after all pleadings are completed.

Question 3

What is a motion for a more definite statement? (Q)

Answer 3

A motion for a more definite statement asks the court to require the opposing party to more clearly state its claims or defenses in its pleading. The moving party must show that the opponent’s pleading is so vague or ambiguous that the moving party cannot reasonably prepare a response. This motion may be brought only if a responsive pleading is allowed.

A typical motion for a more definite statement is brought by a defendant before answering the complaint. However, the motion may be brought by any party before serving any responsive pleading, e.g., by a plaintiff before answering a counterclaim.

Question 4

At what point in a civil case may a party bring a motion for a more definite statement? (Q)

Answer 4

The moving party must bring a motion for a more definite statement before filing its responsive pleading. Typically, this will involve a defendant’s bringing the motion before answering the complaint.

Question 5

On a motion for a more definite statement, what information must the moving party provide to the court regarding the opponent’s pleading? (Q)

Answer 5

A motion for a more definite statement must identify both the defects in the opponent’s pleading and the details that the moving party seeks. 12e

Question 6

If the court orders a party to provide a more definite statement, how long does that party have to comply with the court’s order? (Q)

Answer 6

A party who is ordered to provide a more definite statement must do so within 14 days of receiving notice of the order or within any other time ordered by the court.

Question 7

If the court strikes a pleading, does the pleading have any further effect in the case? (Q)

Answer 7

No. If the court strikes a pleading, then the pleading is given no effect in the case. In essence, the court will treat the pleading as if it had never been filed.

Question 8

If a party fails to obey an order to provide a more definite statement, what action may the court take in response to the failure? (Q)

Answer 8

If a party fails to obey an order to provide a more definite statement, the court may strike the pleading or enter any other order that is appropriate. The court has discretion to decide what type of order would be appropriate in a given case.

Question 9

A plaintiff sued a defendant in federal court. The complaint described the claim as follows: “The defendant injured the plaintiff with his car.” The complaint provided no other factual details about the plaintiff’s claim. The defendant filed and served a timely answer. Two weeks later, the defendant moved for a more definite statement, arguing that the plaintiff’s allegations were excessively vague.

Is the defendant’s motion timely? (Q)

Answer 9

No. The motion is not timely because the defendant brought the motion after answering the complaint. A motion for a more definite statement asks the court to require the opposing party to clarify the allegations in its pleading. The moving party must show that the opponent’s pleading is so vague or ambiguous that the moving party cannot reasonably prepare a response. The moving party must bring a motion for a more definite statement before filing its responsive pleading.

Here, the defendant’s answer was the responsive pleading to the plaintiff’s complaint. Thus, if the defendant wanted to move for a more definite statement, the defendant had to do so before answering the complaint. Instead, the defendant answered first, then moved for a more definite statement. Thus, because the defendant filed the answer first, the motion for a more definite statement is not timely.

Question 10

What is a motion to strike? (Q)

Answer 10

A motion to strike asks the court to remove from a pleading any insufficient defense or any material that is redundant, immaterial, impertinent, or scandalous.

Question 11

At what point in the case must a party bring a motion to strike? (Q)

Answer 11

The moving party must bring a motion to strike before filing a responsive pleading or, if no responsive pleading is allowed, within 21 days after being served with the offending pleading. The court may also strike such material on its own initiative, without awaiting a motion.

Question 12

What legal standard will a court apply in ruling on a motion to strike? (Q)

Answer 12

Motions to strike are disfavored and are rarely granted. A court generally will grant a motion to strike only if the challenged material has no possible relevance to the case or if the material is truly scandalous. Material is considered truly scandalous if it unnecessarily attacks a party’s character or lessens the dignity of the court. However, courts sometimes decline to strike even offensive or disturbing material if it is relevant to the parties’ claims or defenses.

Question 13

In general, must a responsive pleading generally include the responding party’s defenses? (Q)

Answer 13

Yes. Generally, all of a party’s defenses must be included in that party’s responsive pleading, if one is required.

Question 14

What defenses may a party assert by bringing a motion before serving a responsive pleading? (Q)

Answer 14

A party may assert the following defenses by bringing a motion before serving a responsive pleading:

b1 lack of subject-matter jurisdiction,
b2 lack of personal jurisdiction,
b3 improper venue,
b4 insufficient process,
b5 insufficient service of process,
b6 failure to state a claim upon which relief can be granted, and
b7 failure to join a required party.

Question 15

Is a party required to assert its Rule 12(b) defenses by bringing a Rule 12(b) motion?

Answer 15

No. A Rule 12(b) motion is an optional way for a party to raise any of the Rule 12(b) defenses. A party may choose to forego a Rule 12(b) motion and raise those defenses in its responsive pleading or in some other way allowed by the civil rules. However, a party who chooses to bring any Rule 12 motion must normally include all of its Rule 12 defenses, including its Rule 12(b) defenses, in a single motion.

Question 16

At what point in the case may a party bring a motion to dismiss under Rule 12(b)?

Answer 16

Any Rule 12(b) motion must be brought before the moving party serves its responsive pleading. If no responsive pleading is required, then the party may raise its Rule 12(b) defenses at trial.

Question 17

If a party chooses to bring a Rule 12 motion before pleading, must the party generally combine all of its Rule 12 defenses and objections in a single motion?

Answer 17

Yes. Generally, a party must combine all of its available Rule 12 defenses and objections in a single motion. With a few exceptions, a party who omits an available Rule 12 issue from its Rule 12 motion may not make a second Rule 12 motion based on the omitted defense or objection. This rule streamlines pretrial procedure by preventing a succession of motions addressed to the pleadings.

Question 18

A plaintiff sued a defendant in federal court. Before answering the complaint, the defendant filed a motion to dismiss for improper venue. The court denied the motion. One week later, having not yet answered the complaint, the defendant moved to strike certain allegations from the complaint. The plaintiff argued that the court should not allow the defendant to bring the motion to strike.

Should the court allow the defendant to bring the motion to strike?

Answer 18

No. The court should not allow the motion to strike, because the defendant did not combine all Rule 12 issues in one motion. Rule 12 allows a party to raise various defenses and objections by motion before serving a responsive pleading. These include a defense of improper venue and a motion to strike. A party who brings a Rule 12 motion generally must combine all available Rule 12 issues into one motion. A party may not bring a second Rule 12 motion based on an issue that it could have included in the first motion.

Here, the defendant brought a Rule 12 motion raising the defense of improper venue. The defendant could have included a motion to strike, because, at that time, the defendant knew what was alleged in the complaint. However, the defendant omitted the motion to strike from her Rule 12 motion. Thus, the defendant may not bring a second Rule 12 motion to raise that issue.

Question 19

If a party brings a Rule 12 motion before pleading, which of the Rule 12(b) defenses are waived if they are omitted from that motion?

Answer 19

The following Rule 12(b) defenses are waived if a party brings a Rule 12 motion and fails to include them:

lack of personal jurisdiction,
improper venue,
insufficient process, and
insufficient service of process.

Question 20

Which Rule 12(b) defenses will be waived if a party does not assert them either in a Rule 12 motion or in the party’s responsive pleading?

Answer 20

The following defenses are waived if they are not asserted in either a responsive pleading or a Rule 12 motion:

lack of personal jurisdiction,
improper venue,
insufficient process, and
insufficient service of process.

Thus, to avoid a waiver, these defenses must be included in a party’s Rule 12 motion, if one is filed. Otherwise, they must be included in the party’s responsive pleading.

Question 21

Which of the Rule 12 defenses are exempt from the requirement to combine all Rule 12 defenses and objections in a single motion?

Answer 21

Some defenses are exempt from the requirement to combine all Rule 12 defenses in a single motion. These defenses are:

failure to state a claim on which relief can be granted,
failure to join a required party under Rule 19(b),
failure to state a legal defense to a claim, and
lack of subject-matter jurisdiction.

Question 22

At what points in a case may a party raise the defenses of (1) failure to state a claim on which relief can be granted, (2) failure to join a required party under Rule 19(b), or (3) failure to state a legal defense to a claim?

Answer 22

A party may raise the defenses of (1) failure to state a claim on which relief can be granted, (2) failure to join a required party under Rule 19(b), or (3) failure to state a legal defense to a claim at the following points in the case:

in any pleading,
in a motion for judgment on the pleadings, or
at trial.

Thus, these defenses are not waived if a party fails to include them in a Rule 12 motion.

Question 23

A plaintiff sued a defendant in federal court. The defendant answered the complaint without filing any pre-answer motions. The defendant’s answer denied various allegations of the plaintiff’s complaint but did not mention any defenses. At trial, the defendant moved to dismiss for improper venue.

Has the defendant waived the defense of improper venue?

Answer 23

Yes. The defendant has waived the defense of improper venue. Rule 12 allows a party to raise various defenses either in its responsive pleading or by motion before pleading. Rule 12 also provides that various defenses are waived if a party fails to raise them either in a motion brought before pleading or in the responsive pleading itself. Among these defenses is improper venue.

Here, the defendant failed to raise improper venue as a defense in a pre-answer motion. The defendant also omitted this defense from the answer. Rule 12 expressly provides that improper venue is waived if it is not raised in either of these settings. Thus, the defendant has waived the defense of improper venue.

Question 24

A plaintiff sued a defendant in federal court. Before answering, the defendant filed a Rule 12 motion to dismiss based on insufficient process. The court denied the motion, and the defendant then answered the complaint. In the answer, the defendant included the defense of lack of personal jurisdiction. At trial, the defendant moved to dismiss for lack of personal jurisdiction. The plaintiff argued that the defendant had waived this defense.

Has the defendant waived the defense of lack of personal jurisdiction?

Answer 24

Yes. The defendant has waived the defense. Rule 12 allows a party to raise some defenses by motion before serving a responsive pleading. These include the defenses of insufficient process and lack of personal jurisdiction. A party who brings a Rule 12 motion must combine all available Rule 12 issues in a single motion. Some defenses are waived if they are available but omitted from a Rule 12 motion. Among these is lack of personal jurisdiction.

Here, the defendant brought a Rule 12 motion asserting insufficient process. The defense of lack of personal jurisdiction was then available, because the defendant had access to all facts needed to contest personal jurisdiction. Thus, the defendant waived this defense by failing to include it in the Rule 12 motion.

Question 25

A plaintiff sued a defendant in federal court. The defendant brought no motions before serving the answer. In the answer, the defendant denied certain allegations made in the complaint, but did not raise any defenses. At trial, the defendant moved to dismiss for failure to join a required party under Rule 19(b).

Has the defendant waived the defense of failure to join a required party under Rule 19(b)?

Answer 25

No. The defendant has not waived the defense. Rule 12 provides that some defenses are waived if a party fails to raise them either in a responsive pleading or in a motion brought before pleading. However, there are several exceptions to this rule, among them the defense of failure to join a required party under Rule 19(b). Rule 12 provides that this defense may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.

Here, the defendant failed to raise the defense of failure to join a required party in the answer and failed to include the defense in a pre-answer motion. While some defenses would be waived under these circumstances, Rule 12 expressly provides that failure to join a required party under Rule 19(b) is not one of them. Thus, the defendant has not waived the defense.

Question 26

If a defendant moves to dismiss for failure to state a claim on which relief can be granted, what must the defendant show to win the motion?

Answer 26

A defendant who moves to dismiss for failure to state a claim on which relief can be granted must show that, even assuming the truth of the facts alleged in the complaint, there is no plausible legal theory under which the plaintiff could recover.

Question 27

May a finding of failure to state a claim on which relief can be granted be based on a party’s failure to allege sufficient facts in the pleading?

Answer 27

Yes. A party might fail to state a claim on which relief can be granted by failing to allege sufficient facts to meet the pleading requirements of the Federal Rules of Civil Procedure. Effectively, this means that the party has failed to state a claim that is plausible on its face.

Question 28

May a finding of failure to state a claim on which relief can be granted be based on a party’s failure to allege a legally recognized cause of action?

Answer 28

Yes. A party might fail to state a claim on which relief can be granted by failing to allege a legally recognized cause of action. In other words, a party might fail to state a claim if there is no law that would entitle the pleader to relief, even if all the facts alleged were true.

Question 29

In deciding a motion to dismiss for failure to state a claim on which relief can be granted, does the court generally consider evidence or other material aside from the pleadings?

Answer 29

No. A motion to dismiss for failure to state a claim on which relief can be granted is generally resolved by considering only the pleadings. The court does not typically accept testimony or other evidence in the course of the motion. Thus, the motion is sometimes said to be resolved solely on the face of the pleadings.

Question 30

On a motion to dismiss for failure to state a claim on which relief can be granted, if the court accepts evidence or other matters outside the pleadings, how must the court change its treatment of the motion?

Answer 30

If a court considering a motion to dismiss for failure to state a claim on which relief can be granted accepts matters outside the pleadings, the court must treat the motion as a motion for summary judgment instead. Effectively, this allows the court to go beyond the pleadings to decide the case on the evidence. In that case, each party must be allowed to present all material that is germane to the motion.

Question 31

A plaintiff sued a technical college in a federal diversity case, alleging educational malpractice. Specifically, the plaintiff alleged that the college had failed to provide sufficient training to enable the plaintiff to find a suitable job upon graduation. Applicable state law did not recognize this cause of action. Personal jurisdiction, subject-matter jurisdiction, and venue were proper. The plaintiff properly served the defendant, and there are no other required parties. The defendant sought to have the case dismissed before filing an answer.

Which Rule 12 defense is most appropriate to accomplish the defendant’s goal?

Answer 31

The most suitable defense is failure to state a claim on which relief can be granted. Rule 12 allows a defendant to raise certain defenses before answering. These defenses may address jurisdiction, venue, process, or failure to join a required party. Rule 12 also provides for a defense of failure to state a claim on which relief can be granted. This defense says that the plaintiff has not pleaded a cognizable claim, either because the facts do not support the claim or because the law does not recognize it.

Here, there are no issues of jurisdiction, venue, service, or required parties. However, the plaintiff has pleaded a cause of action that is not recognized by state law. Thus, this situation is best addressed by a defense of failure to state a claim on which relief can be granted, because the plaintiff has failed to allege a legally recognized cause of action.

Question 32

What is a motion for judgment on the pleadings?

Answer 32

A motion for judgment on the pleadings is a motion requesting judgment in the moving party’s favor based only on the pleadings and not on any evidence or other material outside the pleadings. Thus, the motion is sometimes said to be resolved solely on the face of the pleadings.

Question 33

At what point in the case may a party move for judgment on the pleadings?

Answer 33

A motion for judgment on the pleadings must be brought after the time for serving all pleadings is over but early enough so as not to delay the trial.

Question 34

On a motion for judgment on the pleadings, if the court accepts evidence or other matters outside the pleadings, how must the court change its treatment of the motion?

Answer 34

If a court considering a motion for judgment on the pleadings accepts matters outside the pleadings, the court must treat the motion as a motion for summary judgment instead. Effectively, this allows the court to go beyond the pleadings to decide the case on the evidence. In that case, each party must be allowed to present all material that is germane to the motion.

Question 35

What is a judgment?

Answer 35

A judgment is defined as a decree or order of the court from which a party may appeal. In more familiar terms, a judgment can be defined as a statement or decision by the court that finally resolves the rights and liabilities of the parties. A judgment might be entered by the court without a trial or after the jury returns its verdict at trial.

Question 36

What is summary judgment?

Answer 36

Summary judgment is a procedure in which the court enters judgment based on the evidence and without a trial.

Question 37

May a party move for summary judgment on part of a case, as opposed to the entire case?

Answer 37

Yes. Any party may move for summary judgment on any claim or defense or on any part of a claim or defense. Thus, summary judgment may be total or partial.

Question 38

What is a material fact for purposes of summary judgment?

Answer 38

A material fact can be defined as a fact that makes a difference in the legal resolution of the case. A fact that is not material is sometimes called an immaterial or collateral fact.

Question 39

What legal standard must the court use in deciding a motion for summary judgment?

Answer 39

The court may grant summary judgment only if:

there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.

Under these conditions, there is no need for a trial to resolve the case.

Question 40

At what point in the case may a party file a motion for summary judgment?

Answer 40

A party may file a motion for summary judgment at any time up to 30 days after the end of discovery. However, the court may order a different time for filing the motion.

Question 41

In the context of summary judgment, what is the record of the case?

Answer 41

In the summary-judgment context, the record consists of all documents filed with the court, all discovery conducted in the case, and any other documents or things that are part of the official history of the case from the time of filing.

Question 42

Must the parties present materials outside the pleadings in connection with a motion for summary judgment?

Answer 42

Yes. Unlike Rule 12 motions, which are generally decided only on the pleadings, a summary-judgment motion is decided based on the demonstrable facts of the case. Thus, each party must cite evidence or other materials from the case record to show that there is or is not a genuine dispute about any material fact.

Question 43

What information from the record may a party cite to support or oppose summary judgment?

Answer 43

In supporting or opposing a motion for summary judgment, the parties may cite any materials in the record, including affidavits and any information gathered in discovery. These materials may include depositions, answers to interrogatories, answers to requests for admissions, stipulations, and any other information contained in the record.

Question 44

What is an affidavit?

Answer 44

An affidavit is a sworn, written statement of fact. The person who swears to the affidavit is called the affiant.

Question 45

What is a 12b1 motion?

Answer 45

Motion to dismiss for lack of subject matter jurisdiction.

Question 46

What is a 12b2 motion?

Answer 46

Motion to dismiss for lack of personal jurisdiction.

Question 47

What is a 12b3 motion?

Answer 47

Motion to dismiss for improper venue.

Question 48

What is a 12b4 motion?

Answer 48

Motion to dismiss for insufficient process (that is, a defect in the summons required to be served on the defendant along with the complaint).

Question 49

What is a 12b5 motion?

Answer 49

Motion to dismiss for insufficient service of process (that is, the method used to deliver the summons and complaint to the defendant).

Question 50

What is a 12b6 motion?

Answer 50

Motion to dismiss for failure to state a claim upon which relief can be granted.

Question 51

What is a 12b7 motion?

Answer 51

Motion to dismiss for failure to join a party under rule 19 (that is, a person who must be made a party to the action to fairly adjudicate the case).

Question 52

Is a defendant required to raise a rule 12 pre-answer motion? (GG)

Answer 52

No.

Question 53

If a party makes a pre-answer motion and leaves out a preliminary objection that could have been included in the motion, can the party make another pre-answer motion based on the omitted objection? (GG)

Answer 53

No. 12g2