Can't figure out this Civ pro practice question Forum

[adil91]

The question is..

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?


If the answering of the complaint was the first response of the defendant then he relinquished his improper venue defense based on FRCP Rule 12(h)(3). Since the statue of limitations is a defense is under FRCP Rule 8(c) as mandatory affirmative defenses that must be included in an answer that has to be included unless failing to plead it did not harm the plaintiff’s strategy according to Carter v US.

I'm not quite sure about failure to join an indispensable party.

Please help

[BVest]

The question is..

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?


If the answering of the complaint was the first response of the defendant then he relinquished his improper venue defense based on FRCP Rule 12(h)(3). Since the statue of limitations is a defense is under FRCP Rule 8(c) as mandatory affirmative defenses that must be included in an answer that has to be included unless failing to plead it did not harm the plaintiff’s strategy according to Carter v US.

I'm not quite sure about failure to join an indispensable party.

Please help

He waived venue. He can amend his answer as a matter of course within 21 days of serving it (as well as with leave of the court), and can include both limitations and and indispensable party in the amended answer. Not only that, failure to join indispensable party can be raised in other pleadings, in a motion for judgment on the pleadings, and during trial. (See Rules 12 and 15).

[clshopeful]

I thought if you amended in time you can add venue?

[BVest]

Maybe you can for a 21-day amendment as a matter of course. Not for any other amendments, even with leave.

[adil91]

Thanks! Supplemental Jurisdiction is really kicking my ass, do you know the answer to this one?

Alice, from Ohio, joined with Barry, also from Ohio, to sue Charles, Donte and Esther for breach of the same contract. They sued in federal court in Indiana. Charles and Donte are citizens of Kentucky. Alice sued Charles for $200,000; she sued Donte for $50,000. Barry sued Charles and Donte for $50,000 each. Ester is from Ohio; both Alice and Barry sued him for $100,000 each. Does the court have subject matter jurisdiction over all of these claims and parties? Does it matter if Ester is dropped from the lawsuit? Explain your answers.