12(b)(6) motion vs 12(f) motion Forum
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12(b)(6) motion vs 12(f) motion
Quick question, let's say defendant raises an affirmative defense and plaintiff wants to get the defense thrown out. Would plaintiff file a 12(b)(6) motion or a 12(f) motion to get the defense stricken down. Help!
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Re: 12(b)(6) motion vs 12(f) motion
Read the language of 12(f).It's most likely not applicable unless the defense redundant such as it may be subject to Rule 11 sanctions.white1ce wrote:Quick question, let's say defendant raises an affirmative defense and plaintiff wants to get the defense thrown out. Would plaintiff file a 12(b)(6) motion or a 12(f) motion to get the defense stricken down. Help!
If the defense raises an affirmative defense the burden is on the ∆ to prove this.
- Tanicius
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Re: 12(b)(6) motion vs 12(f) motion
An affirmative defense is different than a counter claim. Affirmative defenses don't always ask for relief, so 12b6 would not apply.
- lawhopeful10
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Re: 12(b)(6) motion vs 12(f) motion
I think you could possibly try a 12(c) motion which is a motion on the pleadings. Or if the defense is not a legally possible one at all and in there for no reason (think asking for punitive damages on a contract claim or something) then i think maybe 12(f). 12(b)(6) is used for you saying so what, so like even if everything you say is true it doesn't matter but I don't think you would use that to attack affirmative defenses. This is just my thought process though so if someone else knows it better please jump in lol.white1ce wrote:Quick question, let's say defendant raises an affirmative defense and plaintiff wants to get the defense thrown out. Would plaintiff file a 12(b)(6) motion or a 12(f) motion to get the defense stricken down. Help!
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Re: 12(b)(6) motion vs 12(f) motion
So then what would apply? or how would the plaintiff get the defense thrown out?
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- lawhopeful10
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Re: 12(b)(6) motion vs 12(f) motion
If they get past the pleading stage then you would use rule 56 for summary judgment.white1ce wrote:So then what would apply? or how would the plaintiff get the defense thrown out?
- shepdawg
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Re: 12(b)(6) motion vs 12(f) motion
Motion to strike