Motion vs. answer

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birdlaw117
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Re: Motion vs. answer

Postby birdlaw117 » Sun Dec 11, 2011 6:09 pm

StyrofoamWar wrote:
nihilism is key wrote: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.

Again. No. It states "Every defense to a claim for relief in any pleading must e asserted in the responsive pleading if one is required. But a party MAY assert the following defenses by motion:"

It also states "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion."

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sundance95
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Re: Motion vs. answer

Postby sundance95 » Sun Dec 11, 2011 6:11 pm

birdlaw117 wrote:Again. No. It states "Every defense to a claim for relief in any pleading must e asserted in the responsive pleading if one is required. But a party MAY assert the following defenses by motion:"

It also states "No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion."

Edit: my b, totally misread birdlaw's post.

CanadianWolf
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Re: Motion vs. answer

Postby CanadianWolf » Sun Dec 11, 2011 6:17 pm

The better practice is to raise 12(b) defenses by motion, in my opinion, whether or not also permitted to be raised in the first responsive pleading (typically an answer) or allowed to be subject to collateral attack.
Birdlaw seems to be quoting the federal rule correctly.

StyrofoamWar
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Re: Motion vs. answer

Postby StyrofoamWar » Sun Dec 11, 2011 6:17 pm

nihilism is key wrote:
StyrofoamWar wrote:
nihilism is key wrote: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.


Touche. Reading comp fail on my part, and I apologize to anyone I confused. You're totally right that it is technically possible to raise these defenses in an answer, but ONLY IF that answer is your first response to the complaint. that's where my reading comp fail was, sorry. Clearly my brain is dying slowly from finals when I can't even read what's written in plain english, haha.

Sorry for any confusion I caused.

StyrofoamWar
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Re: Motion vs. answer

Postby StyrofoamWar » Sun Dec 11, 2011 6:18 pm

CanadianWolf wrote:The better practice is to raise 12(b) defenses by motion, in my opinion, whether or not also permitted to be raised in the first responsive pleading (typically an answer) or allowed to be subject to collateral attack.
Birdlaw seems to be quoting the federal rule correctly.


This is what I was going for, and utterly failing to state appropriately. Time for a break apparently, hahaha. sorry all.

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sundance95
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Re: Motion vs. answer

Postby sundance95 » Sun Dec 11, 2011 6:20 pm

No worries, raising them by motion is definitely the better practice in nearly all situations. Glad we cleared it up.

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Bildungsroman
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Re: Motion vs. answer

Postby Bildungsroman » Sun Dec 11, 2011 6:24 pm

StyrofoamWar wrote:
CanadianWolf wrote:The better practice is to raise 12(b) defenses by motion, in my opinion, whether or not also permitted to be raised in the first responsive pleading (typically an answer) or allowed to be subject to collateral attack.
Birdlaw seems to be quoting the federal rule correctly.


This is what I was going for, and utterly failing to state appropriately. Time for a break apparently, hahaha. sorry all.

You're backpedaling. You very explicitly said ITT that you absolutely have to raise 12(b) defenses as a pre-answer motion, which is completely false. Be man enough to admit where you were wrong instead of trying to pass it off as you just not being clear enough. Especially considering how much of a prick you were in your first response (I believe you said "this is so wrong it hurts") to nihilism's totally accurate statement.

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nihilism is key
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Re: Motion vs. answer

Postby nihilism is key » Sun Dec 11, 2011 6:25 pm

It's all good. Debate = excellent form of review IMO.

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birdlaw117
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Re: Motion vs. answer

Postby birdlaw117 » Sun Dec 11, 2011 6:26 pm

Yeah, I can't really think of a reason to not do it in a motion. I was just saying you could do it all together.

nihilism is key wrote:It's all good. Debate = excellent form of review IMO.


Also this. :D Thanks guys!

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nihilism is key
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Re: Motion vs. answer

Postby nihilism is key » Sun Dec 11, 2011 6:29 pm

Bildungsroman wrote: Especially considering how much of a prick you were in your first response (I believe you said "this is so wrong it hurts") to nihilism's totally accurate statement.


That was a little prick-ish.
Last edited by nihilism is key on Sun Dec 11, 2011 6:40 pm, edited 2 times in total.

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MrPapagiorgio
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Re: Motion vs. answer

Postby MrPapagiorgio » Sun Dec 11, 2011 6:31 pm

Completely mind fucked now the day before my civ pro final. Yay.

StyrofoamWar
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Re: Motion vs. answer

Postby StyrofoamWar » Sun Dec 11, 2011 7:11 pm

Bildungsroman wrote:
StyrofoamWar wrote:
CanadianWolf wrote:The better practice is to raise 12(b) defenses by motion, in my opinion, whether or not also permitted to be raised in the first responsive pleading (typically an answer) or allowed to be subject to collateral attack.
Birdlaw seems to be quoting the federal rule correctly.


This is what I was going for, and utterly failing to state appropriately. Time for a break apparently, hahaha. sorry all.

You're backpedaling. You very explicitly said ITT that you absolutely have to raise 12(b) defenses as a pre-answer motion, which is completely false. Be man enough to admit where you were wrong instead of trying to pass it off as you just not being clear enough. Especially considering how much of a prick you were in your first response (I believe you said "this is so wrong it hurts") to nihilism's totally accurate statement.




I was wrong. So wrong that it hurt (guess i should eat my own words here). And yah, it was prickish, should have reviewed my notes better. Guess finals have made me A) wrong and B) a dick. Again, sorry.

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PinkCow
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Re: Motion vs. answer

Postby PinkCow » Sun Dec 11, 2011 7:26 pm

Dear Lord.

We had a question very similar to this in Civ Pro. I thought I nailed it and then you bros (especially Styro) almost gave me a heart attack.

COME ON!

Renzo
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Re: Motion vs. answer

Postby Renzo » Sun Dec 11, 2011 10:22 pm

Having seen how this thread evolved, it looks like I misunderstood the question. App your defenses can be asserted in an answer, but the advantage to doing it in a motion is that you don't have to answer the complaint, at least not yet. That, at worst, buys you some time for clever lawyering, and at best keeps you from having to admit facts that you might rather not.

CanadianWolf
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Re: Motion vs. answer

Postby CanadianWolf » Mon Dec 12, 2011 3:40 pm

But, always check your local rules for federal court. State jurisdictions may also have different requirements and/or options.

Regardless, for OneL testing purposes:

12(b) defenses may be raised by pre-answer motion which must be filed before any other responsive pleading, or in the first responsive pleading if one is required (typically an answer) or by collateral attack if you allowed the matter to go to a default decision & the judgment is trying to be enforced in another jurisdiction.

KEY: First response whether it by motion or an answer.

If Defendant did not file any responsive pleading & allowed the matter to go to a default judgment, then these defenses may be raised by collateral attack---but this is a risky tactic that should only be used when amount in controversy is small. Collateral attack also seems to support defense of improper service or improper venue (why travel from Hawaii to West Virginia to defend against a $900 claim when all of your assets are in Hawaii ?)
Last edited by CanadianWolf on Mon Dec 12, 2011 4:26 pm, edited 1 time in total.

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PinkCow
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Re: Motion vs. answer

Postby PinkCow » Mon Dec 12, 2011 4:05 pm

CanadianWolf wrote:But, always check your local rules for federal court. State jurisdictions may also have different requirements and/or options.

Regardless, for OneL testing purposes:

12(b) defenses may be raised by pre-answer motion which must be filed before any other responsive pleading, or in the first responsive pleading if one is required (typically an answer) or by collateral attack if you allowed the matter to go to a default decision & the judgment is trying to be enforced in another jurisdiction.

KEY: First responsive pleading whether it is a motion or an answer.

If Defendant did not file any responsive pleading & allowed the matter to go to a default judgment, then these defenses may be raised by collateral attack---but this is a risky tactic that should only be used when amount in controversy is small. Collateral attack also seems to support defense of improper service or improper venue (why travel from Hawaii to West Virginia to defend against a $900 claim when all of your assets are in Hawaii ?)


Watch out - motions are not pleadings.

CanadianWolf
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Re: Motion vs. answer

Postby CanadianWolf » Mon Dec 12, 2011 4:22 pm

Then "first response" whether by motion or in an answer.

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Guchster
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Re: Motion vs. answer

Postby Guchster » Mon Dec 12, 2011 4:40 pm

Wow a few posters here need to read the friggin E&E! Esp if they're going to insult accurate statements.

For those confused by a few ignorant statements, Chapter 19, Question 4 answers these questions.

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Guchster
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Re: Motion vs. answer

Postby Guchster » Mon Dec 12, 2011 4:44 pm

Also to add one clusterfuck 12(e) motion is not acceptable in a responsive pleading. According to Chap. 19, Question 4c, point is to get a clear statement so D can respond--so 12(e) must be made before filing a responsive pleading.

Can someone think of an exception?

CanadianWolf
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Re: Motion vs. answer

Postby CanadianWolf » Mon Dec 12, 2011 4:58 pm

@Guchster: What are the "few ignorant statements" to which you refer in your post above ?

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Guchster
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Re: Motion vs. answer

Postby Guchster » Mon Dec 12, 2011 5:26 pm

CanadianWolf wrote:@Guchster: What are the "few ignorant statements" to which you refer in your post above ?



Not to out people but the first two responses to OP were wrong. Also, I'm glad styrofoam cup came clean.

Your answers, and especially nihilism is key's, are TCR.

c3pO4
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Re: Motion vs. answer

Postby c3pO4 » Mon Dec 12, 2011 7:39 pm

this is the type of stuff that is obvious after a week in an actual litigation job but tough to figure out in a semester of law school. pedagogical failure ftw

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nihilism is key
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Re: Motion vs. answer

Postby nihilism is key » Mon Dec 12, 2011 8:44 pm

Guchster wrote:Also to add one clusterfuck 12(e) motion is not acceptable in a responsive pleading. According to Chap. 19, Question 4c, point is to get a clear statement so D can respond--so 12(e) must be made before filing a responsive pleading.

Can someone think of an exception?


(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.


I don't think there is an exception. But the earlier discussion was just in reference to 12(b) defenses asserted in pre-answer motions, whereas 12(e) is a motion, rather than a defense.

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sundance95
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Re: Motion vs. answer

Postby sundance95 » Mon Dec 12, 2011 8:48 pm

c3pO4 wrote:this is the type of stuff that is obvious after a week in an actual litigation job but tough to figure out in a semester of law school. pedagogical failure ftw

Coolest of the cool stories.

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NoleinNY
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Re: Motion vs. answer

Postby NoleinNY » Mon Dec 12, 2011 10:32 pm

Guchster wrote:
CanadianWolf wrote:@Guchster: What are the "few ignorant statements" to which you refer in your post above ?



Not to out people but the first two responses to OP were wrong. Also, I'm glad styrofoam cup came clean.

Your answers, and especially nihilism is key's, are TCR.



Yeah, I'll cop to my error, too. My head has been on backwards for 3 days thanks to finals season.




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