Rule 12 - Waiving Defenses Forum

[IPlaw09]

I am so clueless about this part of the Rule. So there are certain defenses like PJ, Venue, etc. that can't be raised at certain times. What are these times? For example, if defenses for PJ and improper venue are rejected. Can the D bring 12b6 during trial or has he waived it?
If a motion is denied is it possible to assert those defenses that are "waivable"?

Thanks for the help guys.

[stretchedtoothin]

Usually, TLS can be a great resource for complex questions. However, all of the answers to your question can be found easily using (1) the explicit text of the rule and/or committee notes, (2) any civil procedure hornbook you own or in the library, (3) consulting your TA/professor, or (4) asking your other classmates

I would try searching "disfavored defenses" in a hornbook or on google/wiki/lexis/westlaw to start. Hope this answer helps!

[MurdockLLP]

I am so clueless about this part of the Rule. So there are certain defenses like PJ, Venue, etc. that can't be raised at certain times. What are these times? For example, if defenses for PJ and improper venue are rejected. Can the D bring 12b6 during trial or has he waived it?
If a motion is denied is it possible to assert those defenses that are "waivable"?

Thanks for the help guys.

Usually, TLS can be a great resource for complex questions. However, all of the answers to your question can be found easily using (1) the explicit text of the rule and/or committee notes, (2) any civil procedure hornbook you own or in the library, (3) consulting your TA/professor, or (4) asking your other classmates

I would try searching "disfavored defenses" in a hornbook or on google/wiki/lexis/westlaw to start. Hope this answer helps!

The answer to this question is in the rule. See 12(h)(1)&(2).

[merlin-]

12(b) Defenses. Can be made under Motion to dismiss or State as an answer.
(1) SMJ
(2) PJX
(3) Improper Venue
(4) Improper process (summons and copy of complaint)
(5) Improper service of process (not served properly)
(6) Failure to state a claim (plaintiff failed to plead facts plausible to a claim)
(7) Failure to join an indispensable party under rule 19.
Under 12(g) 12(h) – Waives and Preserves
• 12(b) (2), (3), (4), (5) – PJx, Improper Venue, Improper service, Improper Process must be put in your first rule 12 response. Or they will be waived.
• 12(b)(6), (7)-- failure to state a claim, failure to join an indispensable party. anytime through trial. After trial is too late.
• 12(b)(1) – Subject Matter Jx is never waived. Can be raised any time, even appeal.

[IPlaw09]

12(b) Defenses. Can be made under Motion to dismiss or State as an answer.
(1) SMJ
(2) PJX
(3) Improper Venue
(4) Improper process (summons and copy of complaint)
(5) Improper service of process (not served properly)
(6) Failure to state a claim (plaintiff failed to plead facts plausible to a claim)
(7) Failure to join an indispensable party under rule 19.
Under 12(g) 12(h) – Waives and Preserves
• 12(b) (2), (3), (4), (5) – PJx, Improper Venue, Improper service, Improper Process must be put in your first rule 12 response. Or they will be waived.
• 12(b)(6), (7)-- failure to state a claim, failure to join an indispensable party. anytime through trial. After trial is too late.
• 12(b)(1) – Subject Matter Jx is never waived. Can be raised any time, even appeal.

Thank you!!