Did you think Rule 12 was done
Why would you use 12(e) motion for more definite statement?
If motion is granted, the court orders PL to file corrected complaint w/in 14 days.
If PL fails to correct- it can be stricken/ erased
Under R12(h)(3) can you waive lack of SMJ?
No...fool, don't be asking that!
When can you use silly R15?
When you want to change your complaint or answer or forgot to add a defense.
What is an example of bad faith on part of movant?
PL seeks to amend in order to add additional $ damages to intimidate Def.
Or Def wants to delay case so seeks to leave to amend knowing addtl time will drag out the case.
What is an example of futility?
The proposed new claim is not permitted under joinder rules, lacks SMJ, PJ, is past SOL, etc
Under R12(c) motion for judgment on pleadings, when can they be done?
After pleadings close but early enough not to delay the trial. All pleadings are considered and any party can file.
Which 12(b) defenses can you list under 12(g)?
12(b) defenses 2-5
Lack of PJ
Improper Venue
Insufficient service
Insufficient service of process
R15(a)(1) is amending as a matter of course before a trial. How many days do you have to amend?
1) 21 days after serving or
2) If pleading is one to which a responsive pleading is required more than 21 days after service of a responsive pleading
3) Or 21 days after service of a motion under R12(b), (e), or (f) whichever is earlier.
What does undue prejudice entail?
This is to the other side if the amendment is allowed (such as too close to trial)
What is an example of undue prejudice?
PL's complaint alleges negligence in driving and it was admitted but the SOL has run and the party now wants to change their answer.
What happens with a 12(f) motion to strike?
Court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
Tell me about R(12)(g)(2) Limitation on Further motions.
Except as provided in R12(h)(2) or (3) a party that makes motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from the earlier motion.
Under R15(a)(2) other amendments > permission is needed. Tell me why.
Party may amend pleading with opposing party's written consent or court's leave.
Note > court should freely give leave when justice requires.
What does undue delay entail?
It is on the part of the movant.
How long does a party have to respond to amending their pleading?
Unless the court orders otherwise, these required responses must be made w/in time remaining to respond to the original pleading or w/in 14 days after service of amended pleading, whichever is later.
Tell me about R12(h)(2) when to raise (save) others.
Failure to state a claim under which relief can be granted to join a party required by R19(b)
Saved and able to be asserted in select ways later in the case through answer/ amended answer
Under R12(h)(1) how can a party easily waive any defense listed in R12(b)(2-5)?
Omitting from motion in R12(g)(2) or failing to either make by motion under this rule or include in responsive pleading or amendment R15(a)(1)
Under R15(a)(2) "court should freely give leave" what are the foman factors?
U- BUF
1) Undue prejudice
2) Bad faith
3) Undue delay
4) Futility
What does futility entail?
On proposed amendment (i.e., amendment is pointless b/c it must fail on the merits) and court lacks authority to decide or is barred.
Why would a lawyer want to amend their pleading?
If they made an error in the original pleading, if the pleading doesn't comply with the rule, typos, etc
Under 12(g)(1) right to join, how many pre answer motions do you get?
Only 1
What happens when you fail to waive the defense of lack of PJ?
Deemed to have waived any objection to PJ even if court did not have it over you.
What is an example of undue delay on part of movant?
Def has defects in his answer but is busy and doesn't seek to amend to alter defenses until 3 days before trial.
Or Def has affirmative defense but doesn't include it in the original answer and seeks to add more than a week after discovery is complete to stop PL from obtaining info
What does bad faith entail?
Under R15, what other rule connections can you make?
Hint > 2
8(c) affirmative defenses
12(h) waivable defenses