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

[sangr]

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

[I.P. Daly]

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]

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]

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]

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]

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]

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.