FRCP

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splittermcsplit88
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FRCP

Postby splittermcsplit88 » Sun Dec 02, 2012 6:55 pm

I'm a bit confused about waiving motions. I know that if you filed a pre-answer motion (and it was denied), but didn't include the one you want, you can't file it later. But, what if you didn't file a pre-answer motion at all? I mean, you technically could have filed it, but you didn't, so is it waived? or, is it only waived when you file a pre-answer motion and you didn't include it?

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Jsa725
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Re: FRCP

Postby Jsa725 » Sun Dec 02, 2012 7:06 pm

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Last edited by Jsa725 on Wed Jul 30, 2014 1:34 pm, edited 1 time in total.

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splittermcsplit88
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Re: FRCP

Postby splittermcsplit88 » Sun Dec 02, 2012 7:11 pm

Okay,

if filed pre-answer motion & you didn't include it -- you're fucked.
if filed answer without motion & you didn't include it -- you can amend to include it.

Correct? Exceptions for SMJ, 12(b)(6)-(7).

I remember something about preserving the defense.

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Jsa725
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Re: FRCP

Postby Jsa725 » Sun Dec 02, 2012 7:19 pm

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Last edited by Jsa725 on Wed Jul 30, 2014 1:34 pm, edited 2 times in total.

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splittermcsplit88
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Re: FRCP

Postby splittermcsplit88 » Sun Dec 02, 2012 7:20 pm

Okay, thanks!

SportsFan
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Re: FRCP

Postby SportsFan » Sun Dec 02, 2012 7:27 pm

Jsa725 wrote:
splittermcsplit88 wrote:Okay,

if filed pre-answer motion & you didn't include it -- you're fucked.
if filed answer without motion & you didn't include it -- you can amend to include it.

Correct?


Yeah, motions are not pleadings and cannot be amended, iirc.
Time to amend is w/in 21 days after service.(Rule 15)(a)(1)(A)

You can also amend after 21 days with the courts permission

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Jsa725
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Re: FRCP

Postby Jsa725 » Sun Dec 02, 2012 7:30 pm

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Last edited by Jsa725 on Wed Jul 30, 2014 1:34 pm, edited 1 time in total.

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splittermcsplit88
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Re: FRCP

Postby splittermcsplit88 » Sun Dec 02, 2012 7:39 pm

I think it was "if justice requires it" and it's early enough in the suit that the other party isn't prejudiced.

SportsFan
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Re: FRCP

Postby SportsFan » Sun Dec 02, 2012 7:41 pm

Jsa725 wrote:
SportsFan wrote:
Jsa725 wrote:
splittermcsplit88 wrote:Okay,

if filed pre-answer motion & you didn't include it -- you're fucked.
if filed answer without motion & you didn't include it -- you can amend to include it.

Correct?


Yeah, motions are not pleadings and cannot be amended, iirc.
Time to amend is w/in 21 days after service.(Rule 15)(a)(1)(A)

You can also amend after 21 days with the courts permission


True, but I believe this is one thing that the courts stay away from ... I don't know the case law on this issue off hand, but I'm pretty sure my Prof mentioned this in class.

But... if its 22 days later I don't know what would happen...

The way my professor phrased it was that its allowed "when justice so requires" but its a liberal standard early on. YMMV of course.

SportsFan
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Re: FRCP

Postby SportsFan » Sun Dec 02, 2012 7:42 pm

Just to make sure I went back to look at my notes from class, and had this bolded:

* A motion is not a pleading

So just keep that in mind and you'll be fine! Haha.

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Jsa725
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Re: FRCP

Postby Jsa725 » Sun Dec 02, 2012 7:56 pm

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