civpro2

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Author:
eryanphr
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39279
Filename:
civpro2
Updated:
2010-10-03 15:16:28
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civpro rule defenses objections
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civpro Rule 12
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  1. What does FRCP Rule 12 cover?
    Defenses and objections: When and how presented; motion for judgment on the pleadings; consolidating motions; waiving defenses; pretrial hearing
  2. What is Rule 12(a)?
    • (a) Time to Serve a Responsive Pleading:
    • (1a) a D must serve an answer within 20 days after being served or if it is timely waived service under Rule 4(d), within 60 days afterthe request for a waiver was sent or 90 days after it was sent to the D outside any judicial district of the US
    • (1b) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the couterclaim or crossclaim
    • (1c) A partymust serve a reply to an answer within 20 days after being served with an order to reply, unless the order specifies a different time.
  3. What is FRCP Rule 12(a)(2)?
    US and agencies, officers, or ee's sued in official capacity: must serve an answer to a complaint, counterclaim, or crossclaim wihtin 60 days after service onthe US atty.
  4. What is FRCP Rule 12(a)(3)?
    US Officers or Ee's sued in an Individual capacity - for an act or omission occurring in connection with duties performd on the US's behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or ee or service on the US atty, whichever is latest.
  5. What is FRCP Rule 12 (a)(4)?
    • Effect of a Motion: serving a motion under this rule alters these periods as follows:
    • - (a) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the courts action; or
    • - (b) if the court grants a motion for a more definite statement, the responsive pleading must be served within 10 days after the more definite statement is served.
  6. What is Rule 12 (b)?
    • How to Present Defenses: Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
    • - (1) lack of SMJ
    • - (2) lack of PJ
    • - (3) improper venue
    • - (4) insufficient process
    • - (5) insufficient service of process
    • - (6) failure to state a claim upon which relief can be granted
    • - (7) failure to join a party under Rule 19 (required joinder of parties)

    A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections ina responsive pleading or in a motion.
  7. What is Rule 12(c)?
    Motion for Judgment on the Pleadings: after the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings.
  8. What is Rule 12(d)?
    Result of Presenting Matters Outside the pleadings: if on a motion under rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
  9. What is Rule 12(e)?
    Motion for a More Definite Statement: a party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 10 days, the court may strike the pleading or issue any ohter appropriate order.
  10. What is Rule 12(f)?
    • Motion to Strike: the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
    • (1) on its own
    • (2) on a motion made by a party either before responding to the pleading or, if a response is not allowed, within 20 days after being served wihtthe pleading.
  11. What is Rule 12(g)?
    • Joining Motions:
    • (1) Right to join: a motion under this rule may be joined with any other motion allowed by this rule
    • (2) Limitation on Further Motions: a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available tothe party but omitted from its earlier motion.
  12. What is Rule 12(h)?
    • Waiving and Preserving Certain Defenses:
    • (1) When sore are waived: a party waives any defense listed in Rule 12(b)(2)-(5) by:
    • - (a) omitting it from a motion in the circumstances described in Rule 12(g)(c) or:
    • - (b) failing to either:
    • ------ (i) make it by motion under this rule; or
    • ------ (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
    • (2) When to Raise Others: Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
    • - (a) in any pleading allowed or ordered under Rule 7(a);
    • - (b) by a motion under Rule 12(c); or
    • - (c) at trial
    • (3) Lack of SMJ - If the court determines at any time that it lacks SMJ, the court must dismiss the action
  13. What is Rule 12(i)?
    Hearing Before Trial: if a party so moves, any defense listed in Rule 12(b)(1) - (7) - whether made in a pleading or by motion - and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

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