Goals

1
Goals

• (1) Serve your complaint (w/required documents)
  (2) file your complaint (w/required documents) at
  830 am.
• Understand why a defendant would want to make a
  Rule 12(b) motion rather than answer, and
  understand the options Rule 12 gives to a
  defendant, and the impact of choosing an option.
• Understand the options given to a defendant in
  answering averments, and how to do so
  effectively.
• Appreciate what an affirmative defense is in
  terms of pleading.

2
?s Turn

• After p Does its Pre-filing Rule 11
  Investigation, Drafts its Complaint, Files and
  Serves It, Then What?

3
Efficiency

• The FRCP could (1) assume that ? denies
  everything, and not require it to do anything or
  (2) allow ? raise every defense or objection at
  trial.
• But they dont they give ? ability to raise
  certain personal defenses or objections early,
  but penalize ? if it fails to raise them.
• Objections that go to whether there will be a
  trial not where or when are preserved.

4
After Complaint Not Options

• What cant ? do
• Move under 12(c).
• Why?
• Move under R56 without also and/or first filing a
  R12 motion or an answer.
• If R56 motion w/out answer or 12 motion
  plaintiff can move under R55(a).
• Why?

5
?s Options

• What
• R12 motion or answer. 12(a)(4).
• If neither 55(a)
• When
• 20 or 60 days. 12(a)(1).

• Why if available should ? use R12 motion instead
  of answer?
• Hint answering requires taking legal and factual
  positions on the merits so, what must ? do in
  order to comply with Rule 11(b)(2) (4) before
  answering?

6
12(b), (e), (f)Possible Pre-Answer Motions

• (b)(1) SMJ
• (b)(2) PJ
• (b)(3) improper venue
• (b)(4) insufficient process
• (b)(5) insufficiency of service of process
• (b)(6) fails to state claim
• (b)(7) fails to join indispensable party
• (e) More definite statement
• (f) Strike scandalous stuff

7
Note on the following slides

• We will not go over the next slides in class.
  They are for you to prepare for class. What we
  will do in class is go over the slides starting
  with the multi-column chart. The answers on that
  slide are correct be prepared to explain why
  under the rules. The next few slides are designed
  to help you figure them out. Likewise, be
  prepared to do the problems and answer the what
  next questions on the later slides. The only
  way to learn these intricate rules is to plow
  through them on your own. Trust me, Ive tried
  other ways!

8
Waiver

• Only R12(e)(f) must be raised by pre-answer
  motion
• All R12(b) defenses can be raised in an answer.
• Which part of 12 says so?
• But any time there is a R12 pre-answer motion of
  any kind, defendant waives certain R12 defenses
  if not in that motion.

9
R12(g)

• If a party makes a motion under R12 and omits
  another objection or defense allowed by R12 and
  then available, the party cant raise it later
  unless R12(h)(2) permits it.
• So
• So, as a practical matter, what does defendant
  have to do when it concludes that it has a R12
  motion to raise?

10
12(h)

• 12(h)(1) (b)(2), (3), (4), (5) can be raised in
  motion, responsive pleading or amendment allowed
  as a matter of course.
• But are waived if not in a motion made under
  12(g).
• 12(h)(2) (b)(6), (7) can be raised in any
  pleading under 7(a) or by motion for judgment on
  pleadings under 12(c).
• 12(h)(3) 12(b)(1) cant be waived.
• SO If defendant makes R12 motion, 12(h)(2)
  saves only (b)(6) (b)(7).
• AND 12(b)(1) can never be waived.

11
(No Transcript)
12
Harder to Waive
Easier to Waive

• 12(b)(1) lack SMJ
• 12(b)(6) Fail to state claim
• If judge would have to grant directed verdict
  after trial, why try case?
• 12(b)(7) Fails to join party under FRCP 19
  (persons needed for just adjudication)
• Well see that if a court cant fully resolve a
  dispute because it cant join a party, it has to
  dismiss the case.

• 12(b)(2) lack PJ
• 12(b)(3) improper venue
• 12(b)(4) insufficient process
• 12(b)(5) insufficient service of process
• 12(e) definite statement
• 12(f) strike material

13
Problem 6 on 381

• A
• 1
• 2
• 3
• 4
• 5
• 6

• B
• 1
• 2
• 3
• 4

14
Motion then what?

• Suppose ? wins its Rule 12(b)(1) Motion
• Suppose ? wins its Rule 12(b)(2) Motion
• Suppose ? wins its Rule 12(b)(3) Motion
• Suppose ? wins its Rule 12(b)(4) Motion
• Suppose ? wins its Rule 12(b)(5) Motion
• Suppose ? wins its Rule 12(b)(6) Motion
• Is the answer the same for each 12(b)(6) motion?
• Suppose, e.g., ? wins a 12(b)(6) motion. Look
  back at the 3 steps for stating a claim. When
  will the plaintiff likely be allowed to amend?
  When not?
• Suppose ? wins its Rule 12(e) Motion
• Suppose ? wins its Rule 12(f) Motion

15
Motion then what?

• Suppose ? loses its Rule 12(b)(1) Motion
• Suppose ? loses its Rule 12(b)(2) Motion
• Suppose ? loses its Rule 12(b)(3) Motion
• Suppose ? loses its Rule 12(b)(4) Motion
• Suppose ? loses its Rule 12(b)(5) Motion
• Suppose ? loses its Rule 12(b)(6) Motion
• Suppose ? loses its Rule 12(e) Motion
• Suppose ? loses its Rule 12(f) Motion

16
The Answer

• Admissions, Denials, I dont knows
  Affirmative Defenses

17
Admissions Denials of Allegations

• 8(d) rejects a well assume defendant denies
  everything approach in favor of what
  presumption?
• How does a defendant overcome that presumption?
• What does 8(b) say about how specific a defendant
  must be in making a denial?
• Whats a general denial and how often do you
  suppose it will be appropriate?
• If a defendant does not know if an allegation is
  true or not, can he deny it?
• Why does 8(b) directly relate to 10(b)?

18
Zielinski (382)

• Despite that knowledge (or, because of it?) how
  did ? respond to the critical allegation?
• What did p do that allowed that to happen?
• What discovery did ? respond to and what did it
  say?
• How did p finally find out the truth?

• Facts that led to suit being filed?
• What did ? know, that p didnt, before it filed
  its answer?

19
Zielinski

• Were both parties equally culpable?
• What could plaintiff had done differently?
• What could defendant?
• What did the plaintiff want?
• What did the court hold?
• Does that mean the jury will be lied to? Doesnt
  it mean that an innocent party will be harmed?
• What two rationales did the court give for ruling
  as it did?

20
Affirmative Defenses

• Under modern pleading rules, a defendant can deny
  that an event occurred, or admit that it had, but
  say that even if it had, recovery is precluded by
  an affirmative defense.
• Where an issue is considered to be an
  affirmative defense the defendant must plead
  it.
• Failure to do so can preclude moving for summary
  judgment on that basis or introducing evidence
  relevant to that defense at trial.

21
Affirmative Defenses 8(c)

• "In pleading to a preceding pleading, a party
  shall set forth affirmatively 1 accord and
  satisfaction, 2 arbitration and award, 3
  assumption of risk, 4 contributory negligence,
  5 discharge in bankruptcy 6 duress, 7
  estoppel, 8 failure of consideration, 9
  fraud, 10 illegality, 11 injury by fellow
  servant, 12 laches, 13 license, 14 payment,
  15 release, 16 res judicata, 17 statute of
  frauds, 18 statute of limitations, 19 waiver,
  20 and any other matter constituting an
  avoidance or affirmative defense."

22
Layman (387)

• Why did plaintiff sue?
• What was defendant trying to do, and why did
  plaintiff object?
• Yeazell wrongly says all the way back to the
  pleadings (389)

• What was the result at trial?
• What did the appellate court do?
• But easement isnt in 8(c)

23
What price caution?

• What if a defendant, after reading Layman,
  labels everything as affirmative defenses
  even things which merely negate an element of the
  plaintiffs claim?

• Layman deals with a defendant who thought a
  denial allowed it to introduce evidence that was
  relevant only to an affirmative defense

24
Omitted Affirmative Defenses

• What are the answers to problem 4 on 391?
• What does Yeazell suggest is the factor which
  will influence how a court will respond to the
  argument that an affirmative defense was not
  properly pled?