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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!

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!

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.

If the defense raises an affirmative defense the burden is on the ∆ to prove this.

An affirmative defense is different than a counter claim. Affirmative defenses don't always ask for relief, so 12b6 would not apply.

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!

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.

So then what would apply? or how would the plaintiff get the defense thrown out?

white1ce wrote:So then what would apply? or how would the plaintiff get the defense thrown out?

If they get past the pleading stage then you would use rule 56 for summary judgment.

Motion to strike