Motion vs. answer Forum

[RR320]

can someone please explain what are the benefits of filing a motion instead of an answer (in regards to rule 12)? Thanks.

[NoleinNY]

Serving a motion under rule 12 change the response period. If responsive pleading is allowed, defenses like "improper venue" or "insufficient process" must be made by motion before pleading. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. Some defenses are waived if you don't include them in a motion before responding.

tl;dr : Certain motions need to be offered before providing an answer.

[Renzo]

tl;dr : Certain motions need to be offered before providing an answer.

This is the key. There are assert-them-or-lose-them defenses, like venue, sufficiency of process, and personal jurisdiction that are waived if not asserted prior to answering the complaint.

[sundance95]

tl;dr : Certain motions need to be offered before providing an answer.

This is the key. There are assert-them-or-lose-them defenses, like venue, sufficiency of process, and personal jurisdiction that are waived if not asserted prior to answering the complaint.

I thought Rule 12 defenses could be asserted in an answer if the answer is D's first filing?

[birdlaw117]

tl;dr : Certain motions need to be offered before providing an answer.

This is the key. There are assert-them-or-lose-them defenses, like venue, sufficiency of process, and personal jurisdiction that are waived if not asserted prior to answering the complaint.

I thought Rule 12 defenses could be asserted in an answer if the answer is D's first filing?

But they might not want to answer. There could be claims that they would have to admit to that they would rather stay silent on if they can.

[sundance95]

But they might not want to answer. There could be claims that they would have to admit to that they would rather stay silent on if they can.

Understood-I just thought the implication of what folks were saying was that it was compulsory to raise these defenses via motion rather than permissive.

[nihilism is key]

tl;dr : Certain motions need to be offered before providing an answer.

This is the key. There are assert-them-or-lose-them defenses, like venue, sufficiency of process, and personal jurisdiction that are waived if not asserted prior to answering the complaint.

These are both incorrect. If you file a pre-answer motion asserting a 12(b) defense and your motion is GRANTED, then you are not required to file an answer until 1) the defect is cured or 2) the case is re-filed because the judge dismissed it (and possibly never if it is an incurable defect such as failure to state a claim upon which relief can be granted and the plaintiff can't fix the problem by amending their complaint)

If you file a pre-answer motion, you must assert any and all of the four disfavored defenses which are applicable (incorrect venue, lack of personal jurisdiction, improper service of process, insufficient process) or you will lose them because these four 12(b) defenses MUST be asserted in your first response to the complaint (whether it be a pre-answer motion or an answer) (caveat: assuming they were available to you at the time - i.e. if you receive a copy of a summons without a complaint and file a 12(b)(4) motion for insufficient process, you will maintain the ability to file certain other 12(b) motions because you were unaware of what the complaint was about, but some will be lost such as personal jurisdiction and venue because those would be included in the summons)

BUT, a defendant is NOT required to file a pre-answer motion and any and all of these defenses can be raised in the answer if no pre-answer motion is made.

Basically, the benefits of filing a pre-answer motion are 1) delaying the process and increasing the amount of time you have to file an answer and 2) the possibility that you will never have to file an answer. HTH.

[NoleinNY]

tl;dr : Certain motions need to be offered before providing an answer.

This is the key. There are assert-them-or-lose-them defenses, like venue, sufficiency of process, and personal jurisdiction that are waived if not asserted prior to answering the complaint.

These are both incorrect. If you file a pre-answer motion asserting a 12(b) defense and your motion is GRANTED, then you are not required to file an answer until 1) the defect is cured or 2) the case is re-filed because the judge dismissed it (and possibly never if it is an incurable defect such as failure to state a claim upon which relief can be granted and the plaintiff can't fix the problem by amending their complaint)

If you file a pre-answer motion, you must assert any and all of the four disfavored defenses which are applicable (incorrect venue, lack of personal jurisdiction, improper service of process, insufficient process) or you will lose them because these four 12(b) defenses MUST be asserted in your first response to the complaint (whether it be a pre-answer motion or an answer) (caveat: assuming they were available to you at the time - i.e. if you receive a copy of a summons without a complaint and file a 12(b)(4) motion for insufficient process, you will maintain the ability to file certain other 12(b) motions because you were unaware of what the complaint was about, but some will be lost such as personal jurisdiction and venue because those would be included in the summons)

BUT, a defendant is NOT required to file a pre-answer motion and any and all of these defenses can be raised in the answer if no pre-answer motion is made.

Basically, the benefits of filing a pre-answer motion are 1) delaying the process and increasing the amount of time you have to file an answer and 2) the possibility that you will never have to file an answer. HTH.

I said that in my first sentence...

As for the quoted parts... 12(b) says "A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." Secondly, 12(h)(1)(B)(i) "A party waives any defense listed in Rule 12(b)(2)–(5) by failing to make it by motion under this rule."

[nihilism is key]

I said that in my first sentence...

As for the quoted parts... 12(b) says "A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed." Secondly, 12(h)(1)(B)(i) "A party waives any defense listed in Rule 12(b)(2)–(5) by failing to make it by motion under this rule."

I did not disagree with your first sentence. I disagreed with the statement made in summary after the "tl;dr"

The first sentence of 12(b) states that "every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion". That means that a party is REQUIRED to include any possible defense in its answer but MAY also make a motion on any of the 7 12(b) defenses PRIOR to pleading. 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.

[Bildungsroman]

As for the quoted parts... 12(b) says "A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."

That sentence you quoted means exactly what it says, but not what you think. That only means that if you want to make a motion asserting any of these defenses, the motion has to come before the responsive pleading. Notice how the language doesn't say "These defenses must be made before pleading."

Secondly, 12(h)(1)(B)(i) "A party waives any defense listed in Rule 12(b)(2)–(5) by failing to make it by motion under this rule."

Did you notice how 12(h)(1)(B) said "failing to either" and then 12(h)(1)(B)(ii) said "include it in a responsive pleading"?

[StyrofoamWar]

...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.

[CanadianWolf]

File 12(b) defenses by motion although they can also be included in the first responsive pleading (usually the answer). If raised in an answer, then you have to reveal more information than if just raised in a pre-answer motion.

Some state jurisdictions may require a motion in their state courts. Regardless, states differ in what constitutes an adequate "denial" in an answer. Some allow defendant simply to respond "denied" while other states require denials to be accompanied by an explanation or a simple "denial" will constitute an admission.

[birdlaw117]

...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.

No.

[StyrofoamWar]

...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.

No.

yes.

[StyrofoamWar]

.

[birdlaw117]

You must raise defenses in the answer, but you MAY (per the language in 12(b)) assert these 7 in a motion. The motion must be before the pleading.

Also, correct me if I'm wrong but subject matter jurisdiction can be addressed at any point... right?

[CanadianWolf]

Correct about subject matter jurisdiction (this can be raised at any time).

[nihilism is key]

...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.

whoa whoa whoa. I never said that. I said that you can either file a pre-answer motion to dimiss and assert the relevant 12(b) defenses there OR file an answer/responsive pleading and assert the defenses there. My point was that you are not required to file a pre-answer motion. no where in my explanation did i mention trial. My discussion was limited to the optional pre-answer motion and the answer. I feel like we are reading two different rule 12s. While it might be logical for a defendant to file a pre-answer motion, I see nowhere in the rule where it requires him to do so.

[birdlaw117]

No.

yes.[/quote]
I should have specified that it was the never being able to raise anything else ever again that I disagreed with. But the language clearly states that you can do it all at once if you want. But as a practical matter I don't know why anybody would ever include a MTD with an Answer. Just more work and such...

[StyrofoamWar]

No.

yes.

I should have specified that it was the never being able to raise anything else ever again that I disagreed with. But the language clearly states that you can do it all at once if you want. But as a practical matter I don't know why anybody would ever include a MTD with an Answer. Just more work and such...[/quote]

I think the confusion in this thread is between the affirmative defenses listed in Rule 8(c), and the defenses specifically set out in Rule 12(b).

Rule 8(c) defenses can be raised in your answer. Rule 12(b) defenses HAVE to be raised by motion before filing a responsive pleading. Unfortunately, the rules use the same term "defenses" for both.

Think of it this way - rule 8(c) defenses tend to be substantive ones, ie contributory negligence, duress, etc (can see the rule for the non-exhaustive list). However, rule 12(b) defenses are procedural. You have to bring up the procedural ones before dealing with the substantive ones, because you're arguing that you shouldn't even be in court in the first place, not that you will win on the merits.

[birdlaw117]

No.

yes.

I should have specified that it was the never being able to raise anything else ever again that I disagreed with. But the language clearly states that you can do it all at once if you want. But as a practical matter I don't know why anybody would ever include a MTD with an Answer. Just more work and such...

I think the confusion in this thread is between the affirmative defenses listed in Rule 8(c), and the defenses specifically set out in Rule 12(b).

Rule 8(c) defenses can be raised in your answer. Rule 12(b) defenses HAVE to be raised by motion before filing a responsive pleading. Unfortunately, the rules use the same term "defenses" for both.

Think of it this way - rule 8(c) defenses tend to be substantive ones, ie contributory negligence, duress, etc (can see the rule for the non-exhaustive list). However, rule 12(b) defenses are procedural. You have to bring up the procedural ones before dealing with the substantive ones, because you're arguing that you shouldn't even be in court in the first place, not that you will win on the merits.[/quote]
I'm saying the rule allows it but it would be silly to do it in most cases. It would be like pleading in the alternative. You'd be saying "the court doesn't have jurisdiction, but if you do, I didn't do it."

[nihilism is key]

Let me see if I can clarify my point:

P serves D with a summons and complaint. D believes that the venue is improper. D has two options:

1) file a 12(b)(3) pre-answer motion to dismiss for improper venue

OR

2) file an answer in which he asserts all of the defenses he could conceivably use at trial as well as the 12(b)(3) motion

I am not saying it would be logical for a defendant to do such a thing. All i am saying is that FRCP R. 12 says that option #2 is valid.

[StyrofoamWar]

Let me see if I can clarify my point:

P serves D with a summons and complaint. D believes that the venue is improper. D has two options:

1) file a 12(b)(3) pre-answer motion to dismiss for improper venue

OR

2) file an answer in which he asserts all of the defenses he could conceivably use at trial as well as the 12(b)(3) motion

I am not saying it would be logical for a defendant to do such a thing. All i am saying is that FRCP R. 12 says that option #2 is valid.

And I'm say it explicitly prohibits it.

You have to bring up 12(b) defenses by a motion after you've been served and before you answer. If you do not, and you file an answer, you can not bring up 12(b) defenses.

[sundance95]

I am not saying it would be logical for a defendant to do such a thing. All i am saying is that FRCP R. 12 says that option #2 is valid.

This. If you argue on an exam that D waived all Rule 12 defenses save lack of subject matter jurisdiction by raising those defenses in D's answer rather than by motion prior to D's answer, you'd wrong (unless the answer is not D's first response to the complaint).

[nihilism is key]

Let me see if I can clarify my point:

P serves D with a summons and complaint. D believes that the venue is improper. D has two options:

1) file a 12(b)(3) pre-answer motion to dismiss for improper venue

OR

2) file an answer in which he asserts all of the defenses he could conceivably use at trial as well as the 12(b)(3) motion

I am not saying it would be logical for a defendant to do such a thing. All i am saying is that FRCP R. 12 says that option #2 is valid.

And I'm say it explicitly prohibits it.

You have to bring up 12(b) defenses by a motion after you've been served and before you answer. If you do not, and you file an answer, you can not bring up 12(b) defenses.

12(b) states: "Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion" (insert 7 defenses) here.

The use of "MAY" clearly indicates that it is optional to assert them in a pre-answer motion.

A little further down in 12(h)(1) it states that a party waives any defense listed in Rule 12(b)(2)-(5) by: (a) omitting it from a motion in the circumstances described in Rule 12(g)(2) OR (b) failing to EITHER: (i) make it by motion under this rule; or include t in a responsive pleading"

I don't know how to make it any clearer. R. 12 explicitly states that the 7 12(b) defenses MAY be asserted in a motion and that they will only be waived if they were not raised in EITHER a motion OR the responsive pleading, which clearly indicates that they can be raised in a responsive pleading.