Issues not Raised=Waived Question

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mikeytwoshoes
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Issues not Raised=Waived Question

Postby mikeytwoshoes » Sun Mar 21, 2010 6:41 pm

I know that usually issues not waived at level of original jurisdiction are generally waived on appeal. My question regards appeal of dismissal for failure to state a claim. Are issues not raised in the motion waived on appeal? Is Trial De Novo review such that the court can consider new issues? What's limit of what may be raised De Novo for this type of dismissal?

TIA

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mikeytwoshoes
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Re: Issues not Raised=Waived Question

Postby mikeytwoshoes » Sun Mar 21, 2010 7:08 pm

mikeytwoshoes wrote:I know that usually issues not waived at level of original jurisdiction are generally waived on appeal. My question regards appeal of dismissal for failure to state a claim. Are issues not raised in the motion waived on appeal? Is Trial De Novo review such that the court can consider new issues? What's limit of what may be raised De Novo for this type of dismissal?

TIA

Ok, to ask more clearly, if D does not assert a claim in his motion to dismiss for failure to state a claim upon which relief could be granted, is that claim waived on appeal?

270910
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Re: Issues not Raised=Waived Question

Postby 270910 » Sun Mar 21, 2010 7:33 pm

mikeytwoshoes wrote:
mikeytwoshoes wrote:I know that usually issues not waived at level of original jurisdiction are generally waived on appeal. My question regards appeal of dismissal for failure to state a claim. Are issues not raised in the motion waived on appeal? Is Trial De Novo review such that the court can consider new issues? What's limit of what may be raised De Novo for this type of dismissal?

TIA

Ok, to ask more clearly, if D does not assert a claim in his motion to dismiss for failure to state a claim upon which relief could be granted, is that claim waived on appeal?


It depends :)

If A sues, B 12(b)(6)s, and wins, then A can only appeal the granting of 12(b)(6) and nothing else. All the appellate court will review is whether granting 12(b)(6) was proper. If it was, game over. If it was not, back to trial - possibly with more decisions and appeals down the line.

If B raises some other issue but NOT 12(b)(6), ONLY whatever was at issue can be reviewed. For example, if it was a 12(b)(1) motion and the issue of failure to state a claim was not raised, it will not be addressed.

It gets more complex when you talk about waiver. Rule 12 has a lot of moving parts with respect to waiver. A 12(b)(1) motion can't be waived, ever, and can be raised sua sponte. 12(b)(6), on the other hand, can be waived in certain instances, most commonly a prior 12(b) motion that did not raise it - if I recall correctly. Consult the federal rules and unpack the language to figure out the precise preclusion / waiver hierarchy for Rule 12 motions to dismiss.

HTH

Dman
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Re: Issues not Raised=Waived Question

Postby Dman » Sun Mar 21, 2010 9:16 pm

Sounds like your dancing around claim preclusion. If a 12(b)(6) is proper, future claims are precluded. However, there Jx differences on whether they determine claim preclusion as cause of action or the transaction test (amongst a couple other minority rules). It if were the former, one may still be able to bring a claim if they can spin the facts enough. If the transactional test is applied, the plaintiff is probably precluded from bringing anything "transactionally related" in the future.

270910
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Re: Issues not Raised=Waived Question

Postby 270910 » Sun Mar 21, 2010 9:22 pm

Dman wrote:Sounds like your dancing around claim preclusion. If a 12(b)(6) is proper, future claims are precluded. However, there Jx differences on whether they determine claim preclusion as cause of action or the transaction test (amongst a couple other minority rules). It if were the former, one may still be able to bring a claim if they can spin the facts enough. If the transactional test is applied, the plaintiff is probably precluded from bringing anything "transactionally related" in the future.


His question has absolutely NOTHING to do with preclusion, wtf?

Dman
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Re: Issues not Raised=Waived Question

Postby Dman » Sun Mar 21, 2010 10:23 pm

disco_barred wrote:
Dman wrote:Sounds like your dancing around claim preclusion. If a 12(b)(6) is proper, future claims are precluded. However, there Jx differences on whether they determine claim preclusion as cause of action or the transaction test (amongst a couple other minority rules). It if were the former, one may still be able to bring a claim if they can spin the facts enough. If the transactional test is applied, the plaintiff is probably precluded from bringing anything "transactionally related" in the future.


His question has absolutely NOTHING to do with preclusion, wtf?


Internet abrasiveness ftw? Your right though, for some reason I was looking at it from the Plaintiff's side, in failing to state all the potential claims. As opposed from the Defendant's raising a claim while filing a 12(b)(6) motion.

In that case, I see the question as does filing a 12(b)(6) require to you also file any 13(a) counterclaims. Claims that fall under 13(a) that are not brought are "precluded", waived, res judicata (take your pick of term). However, I believe bringing CCs are a responsive pleading and are not required to be filed with a 12(b) motion and may be brought at anytime during the pleading stage.

Disco's prior answer was an answer the question in terms of 12(b) and what defenses by motion can be raised or waived as opposed to my interpretation of "claim" and a counterclaim in the OP's reworded question.

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superserial
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Re: Issues not Raised=Waived Question

Postby superserial » Sun Mar 21, 2010 10:40 pm

mikeytwoshoes wrote:I know that usually issues not waived at level of original jurisdiction are generally waived on appeal. My question regards appeal of dismissal for failure to state a claim. Are issues not raised in the motion waived on appeal? Is Trial De Novo review such that the court can consider new issues? What's limit of what may be raised De Novo for this type of dismissal?

TIA


you can file a 12(b)(6) motion before your answer (you'd join all your Rule 12 motions using 12(g)), and you'd only be precluded from making 12(b)(2)-(5) motions in your answer that you forgot to join (12(h)(1)). if the 12(b)(6) dismissal was reversed on appeal, you'd just include counterclaims/issues unrelated to the motion to dismiss in your answer.




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