nihilism is key wrote:
...the portion of 12(b) you are quoting is with respect to defenses lost IF a party CHOOSES to assert any of those defenses in a pre-answer motion. It simply says that if you are going to make a motion to dismiss (or any other motion based on these defenses), you must make them before you answer. BUT if you do not wish to make such a motion and would prefer to assert the defenses in your answer, that is fine too. Take away: a pre-answer motion is NEVER required and a defendant will NOT lose any of the 12(b) defenses by choosing not to make a pre-answer motion.
Good sweet god this is so wrong it hurts.
Some defenses absolutely 100% require a pre-answer motion. Namely, any of the defenses in rule 12(b), absent extreme circumstances.
Rule 12(B) lists 7 defenses that a party may assert by motion. It also requires that you file a motion based on these defenses (Motion to Dismiss Due to [insert 12(b)(1)-(7) defense here]) PRIOR to filing a responsive pleading, if a responsive pleading is allowed. An answer is a responsive pleading. Accordingly, if you want to file a 12(b) motion, you have to do it before answering. Failure to do so waives the defense, by the very text of the rule.
You absolutely can NOT file a pleading that is part Motion to Dismiss, part answer. A party can bring up other defenses in their answer (i.e. contributory negligence, etc). However, if the defendant wants to assert any of the defenses listed in Rule 12(b), he HAS to do so before answering the pleading. Failure to do so amounts to a waiver of these defenses.
The ONLY way that you could bring up a 12(b) defense at trial is if you got served with a special pleading that does not require a responsive pleading. Your typical complaint requires a responsive pleading (an answer). I honestly can't even think of what a pleading that doesn't require a responsive pleading would be.
Please please please don't argue with this. If you refuse to believe me, go to any PACER docket for any court anywhere in any federal court and find me one motion that is both an answer and a MTD based on something from FRCP 12(b). I promise you won't find one. Because it's not allowed.