FRCP 12(a)(4)(A) question Forum

clone22 · Post by **clone22** » Mon Dec 05, 2011 6:58 pm

Hey, so one of the problems in my textbook reads on Day 0 summons and complaint are served. on Day 15 D serves a 12(e) motion for more definitive statement; on Day 43 court grants the motion; on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion; on day 60 D serves a 12(b)(6) motion, and on day 74 the court denies the 12(b)(6) motion. How much time does D have to serve the answer?

I was thinking D has until Day 88 since Rule 12(a)(4)(A) says that "if the court denies the motion or postpones its disposition until trial, the responsive pleadings must be served within 14 days after notice of the court's action"

So if the notice of the court's action is Day 74, adding 14 days to that results in day 88, right?

My professor went over this in class, and he seems to say that D's time actually ran out on Day 70 because he only had 14 days after P served him with a more definitive statement on day 56. What I don't understand is why 12(a)(4)(A) doesn't kick in and give D another 14 days after the court rules on his 12(b)(6) motion.

The said professor wrote the textbook and the question, which is why I'm confused.

Any help will be highly appreciated, thanks.

zeusmaxpower · Post by **zeusmaxpower** » Mon Dec 05, 2011 9:00 pm

clone22 wrote:Hey, so one of the problems in my textbook reads on Day 0 summons and complaint are served. on Day 15 D serves a 12(e) motion for more definitive statement; on Day 43 court grants the motion; on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion; on day 60 D serves a 12(b)(6) motion, and on day 74 the court denies the 12(b)(6) motion. How much time does D have to serve the answer?

I was thinking D has until Day 88 since Rule 12(a)(4)(A) says that "if the court denies the motion or postpones its disposition until trial, the responsive pleadings must be served within 14 days after notice of the court's action"

So if the notice of the court's action is Day 74, adding 14 days to that results in day 88, right?

My professor went over this in class, and he seems to say that D's time actually ran out on Day 70 because he only had 14 days after P served him with a more definitive statement on day 56. What I don't understand is why 12(a)(4)(A) doesn't kick in and give D another 14 days after the court rules on his 12(b)(6) motion.

The said professor wrote the textbook and the question, which is why I'm confused.

Any help will be highly appreciated, thanks.

Rule 12(g)(2) restricts D to make one pre-answer motion. 12(c) was denied on Day 56 at which point 12(4)(B) kicked in. D should have included the 12(b)(6) with his answer by Day 70.

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 9:05 pm

This made no sense. 12(c) isn't even in the question.

Could someone answer properly? I think I have the same textbook...

zeusmaxpower · Post by **zeusmaxpower** » Mon Dec 05, 2011 9:08 pm

johansantana21 wrote:This made no sense. 12(c) isn't even in the question.

Could someone answer properly? I think I have the same textbook...

Sorry I meant 12(e).

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 9:13 pm

Nothing was denied on day 56. As for limited to one motion, it says only limited to 1 motion unless the motion was not available at that time. The 12(b)(6) wasn't available at the time due to an indefinite statement, so he brought it up when it was available. I'm lost?

zeusmaxpower · Post by **zeusmaxpower** » Mon Dec 05, 2011 9:18 pm

johansantana21 wrote:Nothing was denied on day 56. As for limited to one motion, it says only limited to 1 motion unless the motion was not available at that time. The 12(b)(6) wasn't available at the time due to an indefinite statement, so he brought it up when it was available. I'm lost?

Sorry I'm on just a few hours of sleep...you're right the 12(e) was granted. 12(4)(B) still applies at this point. 12(b)(6) was still available when the 12(e) motion was requested. D could have requested both.

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 9:21 pm

zeusmaxpower wrote:
johansantana21 wrote:Nothing was denied on day 56. As for limited to one motion, it says only limited to 1 motion unless the motion was not available at that time. The 12(b)(6) wasn't available at the time due to an indefinite statement, so he brought it up when it was available. I'm lost?
Sorry I'm on just a few hours of sleep...you're right the 12(e) was granted. 12(4)(B) still applies at this point. 12(b)(6) was still available when the 12(e) motion was requested. D could have requested both.

" on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion"

zeusmaxpower · Post by **zeusmaxpower** » Mon Dec 05, 2011 9:32 pm

johansantana21 wrote:
zeusmaxpower wrote:
johansantana21 wrote:Nothing was denied on day 56. As for limited to one motion, it says only limited to 1 motion unless the motion was not available at that time. The 12(b)(6) wasn't available at the time due to an indefinite statement, so he brought it up when it was available. I'm lost?
Sorry I'm on just a few hours of sleep...you're right the 12(e) was granted. 12(4)(B) still applies at this point. 12(b)(6) was still available when the 12(e) motion was requested. D could have requested both.
" on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion"

I take that to mean that on Day 56, the 12(b)(6) motion has a clear basis of support. My question would be if you take that to mean that prior to the more definite statement, the 12(b)(6) motion was not "available to the party". I would suggest that it was indeed available. A 12(b)(6) motion attacks the legal or factual sufficiency of the pleading. P's complaint lacked the legal sufficiency (assuming all facts to be true, there was no cause of action) and factual sufficiency as required by 8(a)(2). Therefore a 12(b)(6) motion would have been "available" to P.

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 9:33 pm

zeusmaxpower wrote:
johansantana21 wrote:
zeusmaxpower wrote:
johansantana21 wrote:Nothing was denied on day 56. As for limited to one motion, it says only limited to 1 motion unless the motion was not available at that time. The 12(b)(6) wasn't available at the time due to an indefinite statement, so he brought it up when it was available. I'm lost?
Sorry I'm on just a few hours of sleep...you're right the 12(e) was granted. 12(4)(B) still applies at this point. 12(b)(6) was still available when the 12(e) motion was requested. D could have requested both.
" on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion"
I take that to mean that on Day 56, the 12(b)(6) motion has a clear basis of support. My question would be if you take that to mean that prior to the more definite statement, whether the 12(b)(6) motion was not "available to the party". I would suggest that it was indeed available. A 12(b)(6) motion attacks the legal or factual sufficiency of the pleading. P's complaint lacked the legal sufficiency (assuming all facts to be true, there was no cause of action) and factual sufficiency as required by 8(a)(2). Therefore a 12(b)(6) motion would have been "available" to P.

Dude I have the textbook. The question specifically says it was not available to him before the more definite statement. That's not what this question hinges upon.

zeusmaxpower · Post by **zeusmaxpower** » Mon Dec 05, 2011 9:38 pm

" on Day 56 P serves the more definitive statement, revealing for the first time possible grounds for a 12(b)(6) motion"[/quote]

I take that to mean that on Day 56, the 12(b)(6) motion has a clear basis of support. My question would be if you take that to mean that prior to the more definite statement, whether the 12(b)(6) motion was not "available to the party". I would suggest that it was indeed available. A 12(b)(6) motion attacks the legal or factual sufficiency of the pleading. P's complaint lacked the legal sufficiency (assuming all facts to be true, there was no cause of action) and factual sufficiency as required by 8(a)(2). Therefore a 12(b)(6) motion would have been "available" to P.[/quote]

Dude I have the textbook. The question specifically says it was not available to him before the more definite statement. That's not what this question hinges upon.[/quote]

Ok, dude. I respectfully disagree, but I'm sure someone much smarter than me can help you out.

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 10:06 pm

Does time run out on day 70 because the defendant has to serve the responsive pleading within 14 days under 12(a)(4)(B), and since a failure to state a claim defense may be laid out in the responsive pleading, the defendant needed to set for the 12(b)(6) defense in the answer? After writing this out, it doesn't make sense, because the 12(b) defenses need to be made before responsive pleadings, and doing them at the same time seems to violate that rule... This is a confusing question. You sure your professor isn't wrong, and you were right?

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 10:09 pm

Judge Philip Banks wrote:Does time run out on day 70 because the defendant has to serve the responsive pleading within 14 days under 12(a)(4)(B), and since a failure to state a claim defense may be laid out in the responsive pleading, the defendant needed to set for the 12(b)(6) defense in the answer? After writing this out, it doesn't make sense, because the 12(b) defenses need to be made before responsive pleadings, and doing them at the same time seems to violate that rule... This is a confusing question. You sure your professor isn't wrong, and you were right?

Well he's grading the exam...

My professor specifically said No extension provided for 2nd motion...but idk why...or what it's based on

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 10:15 pm

johansantana21 wrote:
Judge Philip Banks wrote:Does time run out on day 70 because the defendant has to serve the responsive pleading within 14 days under 12(a)(4)(B), and since a failure to state a claim defense may be laid out in the responsive pleading, the defendant needed to set for the 12(b)(6) defense in the answer? After writing this out, it doesn't make sense, because the 12(b) defenses need to be made before responsive pleadings, and doing them at the same time seems to violate that rule... This is a confusing question. You sure your professor isn't wrong, and you were right?
Well he's grading the exam...

My professor specifically said No extension provided for 2nd motion...but idk why...or what it's based on

I'm thoroughly confused... I don't know either...

My only guess is that the defendant should have asserted the 12(b)(6) defense in the responsive pleading after the 12(e) motion was granted, since the rule [12(a)(4)(B) I think] specifically says to serve the responsive pleading within 14 days of the court's granting the 12(e) motion.

Edit: who the hell files a 12(e) motion in real life, anyway?

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 10:18 pm

I'm tempted to ask this on my class's TWEN forum to see what my profesor thinks...

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 10:21 pm

Judge Philip Banks wrote:I'm tempted to ask this on my class's TWEN forum to see what my profesor thinks...

Please do. That question from the OP is pretty much verbatim from our casebook that our professor wrote.

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 10:23 pm

johansantana21 wrote:
Judge Philip Banks wrote:I'm tempted to ask this on my class's TWEN forum to see what my profesor thinks...
Please do. That question from the OP is pretty much verbatim from our casebook that our professor wrote.

Freer? Or a different casebook? I don't remember this from the Freer one, but I could just not remember it.

johansantana21 · Post by **johansantana21** » Mon Dec 05, 2011 10:26 pm

Judge Philip Banks wrote:
johansantana21 wrote:
Judge Philip Banks wrote:I'm tempted to ask this on my class's TWEN forum to see what my profesor thinks...
Please do. That question from the OP is pretty much verbatim from our casebook that our professor wrote.
Freer? Or a different casebook? I don't remember this from the Freer one, but I could just not remember it.

Kaplan&Clermont

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 10:27 pm

johansantana21 wrote:
Judge Philip Banks wrote:
johansantana21 wrote:
Judge Philip Banks wrote:I'm tempted to ask this on my class's TWEN forum to see what my profesor thinks...
Please do. That question from the OP is pretty much verbatim from our casebook that our professor wrote.
Freer? Or a different casebook? I don't remember this from the Freer one, but I could just not remember it.
Kaplan&Clermont

OK, well, either way, it's a good question to ask. I'll put it on the forum, but it probably won't be answered until tomorrow. Also, not like my professor's answer is definitive or anything either.

inmans · Post by **inmans** » Mon Dec 05, 2011 11:08 pm

The answer should be made within 14 days after the time that the more definite statement is served, so that means the answer must be made on or prior to day 70.

Federal rule 12(a)(4)(B)

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 11:19 pm

inmans wrote:The answer should be made within 14 days after the time that the more definite statement is served, so that means the answer must be made on or prior to day 70.

Federal rule 12(a)(4)(B)

That's the alternative that I was thinking about above. So the D's 12(b)(6) defense needed to be included in the answer following the granting of the 12(e) motion and served by day 70, right?

inmans · Post by **inmans** » Mon Dec 05, 2011 11:26 pm

I'm not positive that the 12(b)(6) needs to be included in the answer, but the answer definitely needs to be submitted on or before day 70.

Judge Philip Banks · Post by **Judge Philip Banks** » Mon Dec 05, 2011 11:36 pm

inmans wrote:I'm not positive that the 12(b)(6) needs to be included in the answer, but the answer definitely needs to be submitted on or before day 70.

Wouldn't a 12(b) defense need to be raised before responsive pleadings are filed, or in the responsive pleading, under rule 12(b)?

bartleby · Post by **bartleby** » Tue Dec 06, 2011 1:43 am

12(b) defense is either before or in the answer

Anonymous Loser · Post by **Anonymous Loser** » Tue Dec 06, 2011 3:37 am

Judge Philip Banks wrote:Edit: who the hell files a 12(e) motion in real life, anyway?

Drafting a 12(e) motion was my very first assignment after graduating and entering practice. After being served, the plaintiff agreed to amend his complaint before the motion was decided. It's a useful tool.

Ikki · Post by **Ikki** » Tue Dec 06, 2011 3:55 am

Did you guys see Clermont's response on blackboard?

"The Rule says that these periods, i.e., the foregoing, periods can be extended, not the "following periods." Or at least there is a risk the Rule would be so read."

Clermont's saying that 14(a)(4) cannot extend the statute of limitations for the answer, because it has already been invoked once. Any period following the first time 12(a)(4) was invoked does not apply. Why you may ask? Because that's how shit rolls apparently.

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