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WHERE WE ARE

WHERE WE ARE . Pleadings. Complaint. Answer 12(b) Motions. Amended Pleadings. Reply. Pre-Trial. Trial & Post-Trial. Appeal. PLEADING Defendant’s Options. Defendant’s Options. Don’t answer (Default). Pre-answer Motion FR 12(b)(6). Answer.

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WHERE WE ARE

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  1. WHERE WE ARE • Pleadings Complaint Answer 12(b) Motions Amended Pleadings Reply • Pre-Trial • Trial & Post-Trial • Appeal

  2. PLEADINGDefendant’s Options Defendant’s Options Don’t answer (Default) Pre-answer Motion FR 12(b)(6) Answer

  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. 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) PRE-ANSWER MOTIONSRule 12

  5. Raise 12(b) defenses by motion or answer 1 pre-answer motion only Pre-answer motion should include all Rule 12 defenses PRE-ANSWER MOTIONSRule 12: Key Points

  6. 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 PRE-ANSWER MOTIONSRule 12: Key Points

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

  8. Cf. Complaints Rule 11 obligations Level of specificity Allocating elements THE ANSWER

  9. Zielinski v. Philadelphia Piers, p. 457 How did def answer? What was wrong with the denial? Wasn’t it accurate and justified? Practically, who is real defendant here? THE ANSWERTheme: Avoiding Surprise

  10. Zielinski v. Philadelphia Piers, p. 457 Why didn’t pl just amend? Could pl have drafted complaint differently to avoid problem? THE ANSWERTheme: Avoiding Surprise

  11. 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 THE ANSWERDuty to Admit

  12. 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 THE ANSWERDuty to Admit

  13. 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 THE ANSWERDuty to Admit

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

  15. 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 THE ANSWERAffirmative Defenses

  16. 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

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

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