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Pleadings by Defendant Responses to Complaint: a. D. may first file a Pre-Answer Motion under Rule 12 (Optional) b. Then the Defendant must Answer the Complaint or Default c. Option of adding claims and impleading other parties
1. Pre-Answer Motions to Dismiss - Rule 12 a. Policy considerations: protect defendant from inappropriate suits through immediate dismissal i. tactical advantage of pre-answer motions - adds time to answer complaint b. All FRCP 12(b) motions are procedural, except 12(b)(6) - failure to state a claim on which relief can be granted, which challenges merits of complaint i. 12(b)(6) motion stipulates even if the plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief. ii. Disfavored defenses
1. under 12(h)(1): waived if omitted from pretrial motion a. 12(b)(2) - Lack of personal jurisdiction b. 12(b)(3) - Improper venue c. 12(b)(4) - Insufficient process d. 12(b)(5) - Insufficient service of process e. All of these are disfavored because they are curable defects f. The 12(g)(2) limitation on further motions if a defense is omitted from earlier motion applies to these 12(h)(1) least favored defenses. i. one shot - can't make one disfavored defense and then come back and make another iii. Favored defenses
1. under 12(h)(2): can be made in any pleading, motion for judgment, or at trial a. 12(b)(6) - Failure to state a claim upon which relief can be granted b. 12(b)(7) - failure to join a required party under Rule 19 iv. Most favored defense
1. under 12(h)(3): may be made at any time a. 12(b)(1) - lack of subject matter jurisdiction v. Note: Lack of subject matter jurisdiction under 12(b)(1), lack of personal jurisdiction under 12(b)(2), and improper venue under 12(b)(3) are fatal to the P, while the court may allowed amended pleadings under the others.
2. FRCP 55: Failure to Answer: Default a. If the Defendant fails to Answer a Complaint within time allotted (usually 21 days - 12(a)(1(A)(i)), the Plaintiff may request Default Judgment under Rule 55
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