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
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."