The Defendant's Response Outline

STAGE FOUR: THE DEFENDANT’S RESPONSE

1. Pre-answer Motions –FRCP 12(b), 12(e), 12(f), 12(g), 12(h), 21

   1. Synthesized Rule/Procedure

      1. If Δ* makes a pre-answer motion, Δ* must include all possible least favored defenses or waive them. If Δ* does not make a pre-answer motion, Δ* must include the least favored defenses in its answer or waive them.

         1. These stop the clock on Δ*’s responsive pleading; if denied, Δ* has 14 days to plead.

      2. Δ* may make favored defenses in any pleading or at trial. A 12(b)(6) motion can be made at any time.

      3. With any 12(b) motion, if Δ* wants the court to rule before trial Δ* must move for a hearing, and must notify Π* at least 14 days before the scheduled hearing.

      4. Π* has 21 days after service of a 12(b), (e), or (f) motion to amend a complaint as a matter of course, and has 14 days to respond to a 12(e) order.

   2. Textual Rule

      1. 12(b) Defensive Motions: Δ* must defend against a claim for relief (e.g. a complaint, a counterclaim, etc.) either in the responsive pleading or by motion.

         1. Disfavored Defenses: Δ* must raise the following in its first response, either joined to a pre-answer motion via FRCP 12(g) or, if not applicable, in the responsive pleading or via FRCP 15(a)(1) amendment:

            1. 12(b)(2) Lack of Personal Jurisdiction,

            2. 12(b)(3) Improper Venue,

            3. 12(b)(4) Insufficient Process, and

            4. 12(b)(5) Insufficient Service of Process. FRCP 12(h)(1).

         2. Favored Defenses: Δ* may raise the following by pre-answer motion, in any pleading, in a motion for judgment on the pleadings, or at trial:

            1. 12(b)(6) Failure to State a Claim Upon Which Relief Can Be Granted (“demurrer”), and

            2. 12(b)(7) Failure to Join a Party under Rule 19. FRCP 12(h)(2).

         3. Most Favored Defense: Δ* may raise the following at any time:

            1. 12(b)(1) Lack of Subject-Matter Jurisdiction. FRCP 12(h)(3).

         4. Hearing Before Trial: Δ* has the option of moving for the above to be heard before trial, FRCP 12(i).

         5. Timeline & Service: Pre-answer motions must be made before the response, usually 21 days (except for answer if process was waived: 60 days). Δ* must serve Π* with all written motions, and notify Π* before 14 days of scheduled hearing. FRCP 6(c)(1).

      2. 12(e) Motion for a More Definite Statement: Δ* may move for this when the previous pleading is so vague that Δ* cannot reasonably prepare a response. Δ* must point out defects and details desired. FRCP 12(e).

         1. Timeline: Δ* must make motion before responsive pleading (either 60 or 21 days). Π* must respond within 14 days or risk the court striking her pleading. FRCP 12(e).

      3. 12(f) Motion to Strike: Δ* may move before its response or within 21 days of a pleading to strike an insufficient defense or any immaterial or scandalous matter; the court may also do this on its own. FRCP 12(f).

      4. Format, Representations to the Court, etc.: See, supra, at General Format of Motions.

   3. Analysis

      1. Failure to State a Claim Upon Which Relief Can Be Granted

         1. This allows dismissal on legal conclusions as opposed to issues of material fact. Mitchell.

         2. Π may amend her claim within 21 days of service as a matter of course, 15(a)(1)(B), or sacrifice this option by appealing the decision. Mitchell.

         3. From Δ’s perspective, this is equivalent to the 12(c) motion for judgment on the pleadings. From Π’s perspective, however, the 12(c) motion could lead the court to strike an insufficient defense, FRCP 12(f), and rule for Π.

         4. For a 12(c) or 12(b)(6) motion, Δ* wins as a matter of law when, assuming Π* will prove all facts alleged and drawing all reasonable inferences in Π*’s favor, Π* still is not entitled to relief.

         5. 12(b)(1) motions do not give Π* a presumption of truth.

      2. Motion for a More Definite Statement

         1. This is made when, e.g., Δ cannot understand the complaint, not when Δ wants the complaint fleshed out. That requires discovery. Board of Harbor Commissioners.

         2. The tactical purpose of this motion is it is cheap and has a very high payoff if granted, but even if not granted a judge may look at the first pleading and decide internally that it is not strong.

      3. Other Motions

         1. For 12(c), see, infra, at Motion for Judgment on the Pleadings; for 12(d), see, infra, at Summary Judgment.

   4. Cases

      1. Mitchell v. Archibald & Kendall, Inc. (7th Cir. 1978, 151): Π, while parked outside Δ’s driveway, was shot in the face during a robbery. Sued on five counts the court believed suffered from legal error: Δ had no duty to protect Π off its premises. Since Π only disagreed about the definition of “premises,” and Π’s definition was wrong, Π failed to state a claim upon which relief could be granted.

         1. Fairchild, J., dissenting: not all of Π’s complaints were limited to premises question; “notice” complaint should have been construed liberally.

      2. United States v. Board of Harbor Commissioners (D. Del. 1977, 128): Δ motioned for a more definite statement on ground that Π’s complaint was too vague. Since complaint fairly notified Δ of nature of claim against it, 12(e) motion was not appropriate.

2. Required Joinder of Parties –FRCP 19

   1. Synthesized Rule/Procedure

      1. In claim for relief, Π must state the name of any necessary Θ not joined and reasons why.

      2. Δ* can move to dismiss for failure to join a party under FRCP 19.

      3. If absent Θ is necessary and can be joined, court must join. If absent Θ not indispensible, Θ may not be joined if joinder would disrupt jurisdiction. If absent Θ is indispensible, court must dismiss the action.

      4. Supplemental Bulge: when the court doesn’t have P.J. over FRCP 14 or 19 Θ in-state, service is okay within 100 miles of courthouse. FRCP 4(k)(1)(B).

   2. Textual Rule

      1. 12(b)(7) Failure to Join a Party under Rule 19: Δ* may raise this by pre-answer motion, in any pleading, in a motion for judgment on the pleadings, or at trial. FRCP 12(h)(2).

      2. Necessary Parties: Π* must join Θ if court has jurisdiction over Θ and one of the following is true.

         1. Impairment to Π/Δ: in Θ’s absence court cannot accord complete relief among existing parties. FRCP 19(a)(1)(A).

         2. Impairment to Θ: Θ claims an...

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