Affirmative Def. can be raised in both answer and motion?

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
sangr
Posts: 458
Joined: Sun Jun 07, 2009 4:45 pm

Affirmative Def. can be raised in both answer and motion?

Postby sangr » Fri Oct 05, 2012 3:09 pm

hello guys

so motion to dismiss for failure state a claim of which relief can be granted is when all the facts even if true dont lead to relief, maybe because of something like....statute of limitations.

so i know that motion to dismiss for failure to state a claim can be brought up anytime..even during trial.. but is this a bigger scope than affirmative defense?

or do all defenses fit in the scope of a motion to dismiss?

any help from u smart folks?
thanks

User avatar
I.P. Daly
Posts: 950
Joined: Fri Nov 19, 2010 3:27 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby I.P. Daly » Fri Oct 05, 2012 3:53 pm

I'm not exactly sure about what you're asking. However, an affirmative defense can be raised in the D's answer or motion to dismiss. An affirmative defense permits the D to avoid liability even if P's allegations are true. By pleading an AD, the D avoids the truth of the complain by alleging another matter that prevents liability.

Motion to dismiss: FRCP 12.

Affirmative defenses: FRCP 8.

sangr
Posts: 458
Joined: Sun Jun 07, 2009 4:45 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby sangr » Sat Oct 06, 2012 11:36 am

thanks

i guess i was a bit confused as in...are affirmative defenses something that encompass more than just something to use during motions? or in the pleading?


How does anyone feel about this:

I have exams coming up and am a bit strapped for time.

since theres so much info on big cases on Personal jurisdiction like: Asahi, etc.

would it generally be safe to read supplemental info on these cases instead of reading thru whole thing?t

thanks

musicfor18
Posts: 436
Joined: Mon Feb 09, 2009 9:15 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby musicfor18 » Sat Oct 06, 2012 8:35 pm

12(b) motions attack the sufficiency of the complaint or jurisdiction/service and may be submitted either in a pre-Answer motion or in the Answer. Some of them must be raised on the first response (either pre-answer motion or in the Answer). Some can be raised later, including the 12(b)(6).

Affirmative defenses are not attacks on the complaint. They are defenses that, if true, allow the D to escape liability even if the P proves everything in his Conplaint. The D has the burden of proving them, and they are raised in the Answer.

mr.hands
Posts: 805
Joined: Fri Jul 13, 2012 4:23 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby mr.hands » Sat Oct 06, 2012 10:25 pm

Yeah a 12(b)(6) motion for failure to state a claim is not an affirmative defense.

An affirmative defense, under 8(c)(1), goes in the answer, not a motion.

sangr
Posts: 458
Joined: Sun Jun 07, 2009 4:45 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby sangr » Sun Oct 07, 2012 1:46 am

isn't affirmative defense saying "even if what u say is true, you can't get relief"

is it just that motion to dismiss for failure to state a claim can say that but encompasses more?

ajr
Posts: 165
Joined: Fri Nov 05, 2010 7:50 pm

Re: Affirmative Def. can be raised in both answer and motion?

Postby ajr » Sun Oct 07, 2012 1:51 am

musicfor18 wrote:12(b) motions attack the sufficiency of the complaint or jurisdiction/service and may be submitted either in a pre-Answer motion or in the Answer. Some of them must be raised on the first response (either pre-answer motion or in the Answer). Some can be raised later, including the 12(b)(6).

Affirmative defenses are not attacks on the complaint. They are defenses that, if true, allow the D to escape liability even if the P proves everything in his Conplaint. The D has the burden of proving them, and they are raised in the Answer.


This.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: Baidu [Spider] and 7 guests