FRCP Forum

[splittermcsplit88]

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?

[Jsa725]

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[splittermcsplit88]

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.

[Jsa725]

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[splittermcsplit88]

Okay, thanks!

[SportsFan]

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

[Jsa725]

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[splittermcsplit88]

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

[SportsFan]

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]

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.

[Jsa725]

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