More Fun with Civ Pro

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Interminable_Waiting
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More Fun with Civ Pro

Postby Interminable_Waiting » Sun Dec 05, 2010 4:24 pm

On the opening day of trial (federal court), Defendant makes a motion to dismiss the case because of laches. D did not mention laches previously (in his answer).

Arguments aginst dismissal (I need at least two distinct ones and can only think of one)

Anyone?

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kalvano
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Re: More Fun with Civ Pro

Postby kalvano » Sun Dec 05, 2010 5:23 pm

Apparently, your Civ Pro class has covered things mine has not.

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Unitas
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Re: More Fun with Civ Pro

Postby Unitas » Sun Dec 05, 2010 5:35 pm

Interminable_Waiting wrote:On the opening day of trial (federal court), Defendant makes a motion to dismiss the case because of laches. D did not mention laches previously (in his answer).

Arguments aginst dismissal (I need at least two distinct ones and can only think of one)

Anyone?


Eh, prolly wrong on this one.
Last edited by Unitas on Sun Dec 05, 2010 5:50 pm, edited 3 times in total.

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let/them/eat/cake
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Re: More Fun with Civ Pro

Postby let/them/eat/cake » Sun Dec 05, 2010 5:35 pm

Interminable_Waiting wrote:On the opening day of trial (federal court), Defendant makes a motion to dismiss the case because of laches. D did not mention laches previously (in his answer).

Arguments aginst dismissal (I need at least two distinct ones and can only think of one)

Anyone?


15(a)(2) -- a defendant can amend once within 21 days of serving an answer, and if there is no right to amend, seek leave of court ("leave shall be given when justice so requires.")

12(h)(2)(c) maybe?

8(c) says you must make your affirmative defenses and i'm pretty sure they are waived if you don't (where does it say that specifically though?)...basically i can't remember how 12h2c interacts with 8c. but there's a starting point for you.

been an entire year since i took this part of civpro so...
Last edited by let/them/eat/cake on Sun Dec 05, 2010 5:39 pm, edited 1 time in total.

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let/them/eat/cake
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Re: More Fun with Civ Pro

Postby let/them/eat/cake » Sun Dec 05, 2010 5:38 pm

Unitas wrote:
Interminable_Waiting wrote:On the opening day of trial (federal court), Defendant makes a motion to dismiss the case because of laches. D did not mention laches previously (in his answer).

Arguments aginst dismissal (I need at least two distinct ones and can only think of one)

Anyone?


Maybe that it was waived by not stating it in the answer or a motion. That anything not claimed in the answer is considered admitted, but it could be argued if plaintiff didn't claim it was proper that this wasn't admitted too, but plaintiff could argue that it is inherently true in a complaint that you believe you can bring the complaint you bring and therefore was admitted when not denied. Policywise it could be said that defendant was able to prepare a case as demonstrated by getting to trial.

Secondly, argue that the pre-trial order has been completed and the judge has already decide the way the case will go. Those things are very rarely if ever changed, Only for manifest injustice which this doesn't seem to be. The defense has worked their case and you have prepared yours. It is a little late now to say that should be forced to do that.

I believe laches are up to judges and common law, so not a statute, correct me if I am wrong? We didn't cover laches very much except for a 5 min don't take notes section, so this may be way off. Laches like statute of limitations can be waived I believe.


i don't even know what most of this post is getting at. laches is listed as an example of affirmative defense in 8c.

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Unitas
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Re: More Fun with Civ Pro

Postby Unitas » Sun Dec 05, 2010 5:44 pm

let/them/eat/cake wrote:
Unitas wrote:
Interminable_Waiting wrote:On the opening day of trial (federal court), Defendant makes a motion to dismiss the case because of laches. D did not mention laches previously (in his answer).

Arguments aginst dismissal (I need at least two distinct ones and can only think of one)

Anyone?


Maybe that it was waived by not stating it in the answer or a motion. That anything not claimed in the answer is considered admitted, but it could be argued if plaintiff didn't claim it was proper that this wasn't admitted too, but plaintiff could argue that it is inherently true in a complaint that you believe you can bring the complaint you bring and therefore was admitted when not denied. Policywise it could be said that defendant was able to prepare a case as demonstrated by getting to trial.

Secondly, argue that the pre-trial order has been completed and the judge has already decide the way the case will go. Those things are very rarely if ever changed, Only for manifest injustice which this doesn't seem to be. The defense has worked their case and you have prepared yours. It is a little late now to say that should be forced to do that.

I believe laches are up to judges and common law, so not a statute, correct me if I am wrong? We didn't cover laches very much except for a 5 min don't take notes section, so this may be way off. Laches like statute of limitations can be waived I believe.


i don't even know what most of this post is getting at. laches is listed as an example of affirmative defense in 8c.


Yeah and in 8(c) you must state it affirmatively in your response.. Why I reference not mentioning it in the answer and also why after the pre-trial order is done they probably won't let you amend it to include it.

But like I said we didn't really cover laches at all, just a few minutes.

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kalvano
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Re: More Fun with Civ Pro

Postby kalvano » Sun Dec 05, 2010 5:46 pm

Laches is an affirmative defense under 8(c) that must be raised in an answer to a pleading. It is not a defense that can be raised in a pre-answer motion like the 12(b) defenses. If you don't use it, you lose it.

An amendment will work if there has not been a prior one - allowed to amend once as a matter of course. If there has been a prior amendment, then leave of court or written consent of the opposing party is required.

I don't know what another defense would be...it would seem that the fact that it wasn't raised in the pleading would preclude it from being raised in a motion once trial has begun.

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Interminable_Waiting
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Re: More Fun with Civ Pro

Postby Interminable_Waiting » Sun Dec 05, 2010 5:53 pm

Nice.

I think the two answers my prof. is looking for are:

1) Laches is an affirmative defense under 8(c) that must be raised in an answer to a pleading. If you don't use it, you lose it.
(this one I had)

2) 15(a)(2) -- a defendant can amend once within 21 days of serving an answer, and if there is no right to amend, seek leave of court ("leave shall be given when justice so requires.") . I can just make an arugment why there should not be an amendment.

3) (maybe) The pre-trial order has been completed and the judge has already decide the way the case will go. Those things are very rarely if ever changed, Only for manifest injustice which this doesn't seem to be. The defense has worked their case and you have prepared yours. It is a little late now to say that should be forced to do that.

We covered personal jurisdiction for a month, and then EVERYTHING ELSE in the casebook for the next two, and it was way too much information to get it all.

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Unitas
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Re: More Fun with Civ Pro

Postby Unitas » Sun Dec 05, 2010 5:57 pm

Interminable_Waiting wrote:Nice.

I think the two answers my prof. is looking for are:

1) Laches is an affirmative defense under 8(c) that must be raised in an answer to a pleading. If you don't use it, you lose it.
(this one I had)

2) 15(a)(2) -- a defendant can amend once within 21 days of serving an answer, and if there is no right to amend, seek leave of court ("leave shall be given when justice so requires.") . I can just make an arugment why there should not be an amendment.

3) (maybe) The pre-trial order has been completed and the judge has already decide the way the case will go. Those things are very rarely if ever changed, Only for manifest injustice which this doesn't seem to be. The defense has worked their case and you have prepared yours. It is a little late now to say that should be forced to do that.

We covered personal jurisdiction for a month, and then EVERYTHING ELSE in the casebook for the next two, and it was way too much information to get it all.


See 3 is a lot harder standard than 2... "Mainifest injustice" versus when "justice so requires." Which do you think is the better argument?....

I would surely mention that they already prepared their defense, so it is silly to say it'd be too hard to prepare a defense at this point.

This isn't for an exam is it?

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let/them/eat/cake
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Re: More Fun with Civ Pro

Postby let/them/eat/cake » Sun Dec 05, 2010 5:59 pm

hahaha, i thought u meant two arguments against dismissing the motion to dismiss . i'm in the midst of studying evidence and just fried. one would deny a motion to dismiss not...

i should have 12(e)'d your initial post...

/self for civpro humor.

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Interminable_Waiting
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Re: More Fun with Civ Pro

Postby Interminable_Waiting » Sun Dec 05, 2010 6:08 pm

This is not for an exam, haha. Just old questions and practice stuff. Exam is in class this week.




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