WHERE WE ARE

1
WHERE WE ARE

• Pleadings

Complaint
Answer 12(b) Motions
Amended Pleadings
Reply

• Pre-Trial

• Trial Post-Trial

• Appeal

2
PLEADINGDefendants Options
Defendants Options
Dont answer (Default)
Answer
Pre-answer Motion FR 12(b)(6)
3
PLEADINGPre-Answer Motions Answer
Pre-answer Motions FR 12(b)
Waived if omitted fr 1st Motion or answer
Not waived before trial
Never waived
PJ Venue Process Content or service
Failure to state claim 12(b)(6) Failure to
join indispensible party
Subject Matter Jurisdiction
4
PRE-ANSWER MOTIONSRule 12

• When defenses must be raised
• FR 12(a)
• What kind of defenses may be raised
• FR 12(b)
• Consequences of failing to raise defenses
• FR 12(g) (h)
• Miscellaneous motions
• FR 12(c), (e), (f)

5
PRE-ANSWER MOTIONSRule 12 Key Points

• Raise 12(b) defenses by motion or answer
• 1 pre-answer motion only
• Pre-answer motion should include all Rule 12
  defenses

6
PRE-ANSWER MOTIONSRule 12 Key Points

• If fail to include Rule 12 defenses in pre-answer
  motion, (or in answer if no motion)
• waived unless
• failure to state claim/legal defense, failure to
  join indispensable party
• smj
• If omit non-waived defense, raise in
• Answer
• motion for judgment on pleadings, i.e.
  post-answer motion

7
PLEADINGAnswer
Answer
Denials ( admissions) FR 8(b)
Counterclaims FR 13
Affirmative Defenses FR 8(c)
Procedural Defenses FR 12(b)
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THE ANSWER

• Cf. Complaints
• Rule 11 obligations
• Level of specificity
• Allocating elements

9
THE ANSWER Theme Avoiding Surprise

• Zielinski v. Philadelphia Piers, p. 457
• How did def answer?
• What was wrong with the denial?
• Wasnt it accurate and justified?
• Practically, who is real defendant here?

10
THE ANSWER Theme Avoiding Surprise

• Zielinski v. Philadelphia Piers, p. 457
• Why didnt pl just amend?
• Could pl have drafted complaint differently to
  avoid problem?

11
THE ANSWER Duty to Admit

• p. 463 Note 5
• Complaint alleges B has not had his car serviced
  for past 2 years
• True, but B knows impossible for A to prove it

12
THE ANSWER Duty to Admit

• p. 463 Note 5
• Complaint alleges Al was running north (same
  direction Bo was driving). Bo does not doubt
  this is true, but did not actually see Al running

13
THE ANSWER Duty to Admit

• p. 463 Note 5
• Complaint alleges Al was running north (same
  direction Bo was driving). Bo does not doubt
  this is true, but did not actually see Al running
• Same, except Lis, friend of Al told Bo he was
  standing 20 feet away and saw Al running north

14
THE ANSWER Affirmative Defenses

• Layman v. Southwestern Bell, p. 463
• Comfortable with result?
• What if
• pretrial proceedings made clear
• Bell planning to introduce evidence of easement?

15
THE ANSWER Affirmative Defenses

• p. 466 Note 4 Examples
• a. Act of God
• b. Avoid hitting child
• c. Faking injury
• d. Negligence of 3rd party
• e. Contribution to capital
• f. Expenses of performing contract

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TAKEAWAYS

• 3 ways to respond consequences
• Default
• Motion to dismiss
• Answer

17
TAKEAWAYS

• Waivability of 12(b) motions
• PJ, process, venue waived
• 12(b)(6), indispensible party preserve
• SMJ never waived

18
TAKEAWAYS

• Answers
• Content
• Admissions/denials
• Affirmative Defenses
• 12(b) Defenses
• Counterclaims

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TAKEAWAYS

• Big Themes
• Rule 11 avoiding surprise
• Procedural design
• How much weight should pleadings bear?