1. CIVIL PROCEDURE CLASS 7 Professor Fischer Columbus School of Law The Catholic University of America Sept. 13, 2001

2. WRAP-UP OF LAST CLASS  You should be familiar with the procedure for and advantages of waiving service under FRCP 4(d)  You should know what a motion is (see Rule 7(b))  You should understand how and why a party makes a pre-trial motion to dismiss under FRCP 12(b), a 12(e) motion or a 9(b)( motion  You should understand what the moving party must prove to succeed on a Rule 12(b)(6), Rule 9(b), and 12(e) motion.

3. WHAT WILL WE DO TODAY?  We will discuss Practice Exercise 7 on the merits of Rule 12(b)(6) and 12(e) motions in Carpenter v. Dee  Then we will discuss waiver and consolidation rules for Rule 12 defenses under Rule 12(g) and 12(h)  Next, we will discuss the pleading requirements for the Answer under the FRCP Rules 8(b) and c

4. Rule 12(b)(6) Motion in Carpenter v. Dee  What arguments might Nancy make in response to this motion?  How do you think the judge should rule on the motion? Why?

5. Rule 12(e) Motion in Carpenter v. Dee  What arguments might Nancy make in response to this motion?  How do you think the judge should rule on the motion? Why?

6. HYPO  Pooh is served with a complaint in a federal civil action brought by Piglet. Pooh makes a pre-trial 12(b)(2) motion for lack of personal jurisdiction, and loses. In preparing his Answer, Pooh wants to include a defense that service of process was invalid under the FRCP because it was made by first-class mail. Please advise Pooh as to whether he can include this defense in his answer.

7. ANOTHER HYPO  Jean brings an action in federal court against George for his statement that there is no relationship more important than that between the U.S. and Mexico. Jean’s complaint claims that this injures all Canadians. George makes a Rule 12(e) motion, which is granted. After Jean supplies further particulars, George makes a Rule 12(b)(6) motion. Is the second motion procedurally permissible under the FRCP?

8. HYPERTECHNICALISM  Are you being driven crazy by the superbly technical wording of Rules 12(g) and (h)  If so, I invite you to take up Glannon’s challenge and rewrite the rules in simpler language without changing their meaning.

9. DANGER OF WAIVER  Certain Rule 12 defenses may be waived if party does not follow the requirements in Rule 12 (g) and (h)  THIS IS AN AREA WHERE IT IS EASY FOR LAWYERS TO MAKE MISTAKES WITH SERIOUS CONSEQUENCES, SO PAY ATTENTION CAREFULLY!

10. USE IT OR LOSE IT  FRCP Rule 12(g), 12(h)  Which types of 12(b) defenses can be waived? (see 12(h)(1) and (2))  How can a D lose the right to make these 12(b) defenses?  Are there any exceptions?  What is the purpose of the consolidation and waiver provisions?

11. Subject Matter Jurisdiction  What does Rule 12(h)(3) provide?  Why do you think that subject matter jurisdiction receives this special treatment under the FRCP?

12. Early Determination of 12(b) Defenses  See Rule 12(d)  Why do the FRCPs encourage the early determination of the 12(b) defenses?

13. ANOTHER HYPO  Pooh is served with a complaint in a federal civil action brought by Piglet. Pooh makes a pre-trial 12(b)(2) motion for lack of personal jurisdiction and loses. In preparing his Answer, Pooh wants to include a defense that the court has no subject matter jurisdiction. Please advise Pooh on whether he can include this defense in his Answer.

14. JAWS HYPO  Mary is the mother of Sam, a young swimmer who was eaten by a shark while swimming at Duck town beach off the Outer Banks. Mary sues the Mayor of Duck in a North Carolina federal district court for wrongful death based on negligent failure to install and maintain shark nets. The Mayor makes a pre-trial motion for lack of personal jurisdiction and loses. His attorney advises him to make another motion for failure to state a claim under Rule 12(b)(6). Procedurally, is this good advice? Why or why not?

15. THE ANSWER  What is an answer?

16. TIME LIMITS FOR ANSWER  When must D SERVE her answer?  When must D FILE her answer?

17. TIME LIMITS FOR ANSWER  When must D SERVE her answer? If formal service, 20 days from service of complaint/summons (12(a)(1)(A)); if waiver of service, 60 days from request if D in U.S. (12)(a)(1)(B))  When must D FILE her answer? Within a reasonable time of serving answer (5(d))

18. HOW DO YOU SERVE THE ANSWER?  See RULE 5(b)- mail service permitted or can hand deliver to attorney/party or can leave at attorney/party’s office w/someone in charge or at a conspicuous place, or, if no office, at party’s dwelling house with someone of suitable age and discretion  Must file certificate of service with court

19. What are D’s Options When Served With A Complaint?  (or waives service of complaint)

20. What are D’s Options When Served With a Complaint?  Don’t respond -- consequences?  Rule 12(b) pre-answer motion -12(b)(1)-(7)  Rule 12(e) motion  Answer with admissions & denials - 8(b)  Answer with admissions & denials and affirmative defenses - 8(b) and 8(c)

21. More Options  Counterclaims and cross-claims (FRCP 13)  Add additional D to counterclaim (13(h))  Impleading a Third Party (FRCP 14)  Whether to Claim a Jury Trial?

22. Pleading the Answer  Notice Pleading  “Short and plain” statement of D’s defense to each pleaded claim (8(b))  Respond by numbered paragraphs in the answer corresponding to numbered paragraphs in complaint (10(b))  Can be inconsistent in answer as well as complaint: 8(e)

23. 3 PLEADING OPTIONS IN ANSWER  Admit  Deny  Deemed Deny

24. ADMISSIONS  8(b) - Can make specific admissions  8(d) - Anything not denied is deemed admitted - SO BE CAREFUL!  Exception - where an answer would subject a party to criminal charges, the 5th Amendment of the U.S. Constitution protects him

25. DENIALS  8(b)- D need only deny allegations in the complaint that she actually disputes. It’s typical to deny entire paragraphs but that is not always appropriate - Zielinski case  Specific Denial - deny particular portion of a claim  General Denial - deny each and every averment of Complaint  8(d) - Anything not denied is deemed admitted - SO BE CAREFUL!!

26. DEEMED DENIALS  Effect of pleading that D is “without knowledge and information sufficient to form a belief as to the truth of an averment”.  How much inquiry must a D make prior to pleading a deemed denial? See Greenbaum v. U.S.; Controlled Environment Systems v. Sun Process

27. Greenbaum v. U.S.  What was substantive dispute?  What was the procedural issue?  How did the E.D. Pa. Resolve this procedural issue?  Didn’t court disregard anti-waiver provision of 12(h)(3)?

28. Controlled Environment Systems v. Sun Process Co., Inc.  What was the problem with the plaintiff’s pleading in para. 10 of the answer to counterclaim?

29. DEEMED DENIALS  1. One can lack knowledge but still have enough information to form a belief under 8(b)  2. The phrase “on information and belief” is generally accepted but is not recognized as a denial by 8(b)

30. AFFIRMATIVE DEFENSES  Some defenses must be affirmatively pleaded under 8c  1. ENUMERATED: E.g. contributory negligence, fraud, res judicata  2. UNENUMERATED: Also “any other matter constituting an avoidance or affirmative defense”  CONCEPT: Is D relying on some new facts that would come as a surprise at trial?

31. UNENUMERATED AFFIRMATIVE DEFENSES  How does the D know if something is an affirmative defense or not?

32. UNENUMERATED AFFIRMATIVE DEFENSES  How does the D know if something is an affirmative defense or not?  Research - there may be relevant court opinions  D may be able to construe statutes to discern whether language gives rise to affirmative defenses

33. CONSEQUENCE OF FAILING TO PLEAD AN AFFIRMATIVE DEFENSE  What happens if D fails to plead an affirmative defense?

34. CONSEQUENCE OF FAILING TO PLEAD AN AFFIRMATIVE DEFENSE  The defense will be waived, unless the court allows amendment  In determining waiver, courts will examine:  1. whether P had knowledge of the facts  2. Prejudice to P resulting from failure to plead  If wrongly plead as counterclaim, court will relabel as affirmative defense

35. BURDEN OF PROOF FOR AFFIRMATIVE DEFENSES  Who bears the burden to prove an affirmative defense?

36. BURDEN OF PROOF FOR AFFIRMATIVE DEFENSES  Party raising the affirmative defense must prove it at trial  NOTE THAT AFFIRMATIVE DEFENSES SHIFT THE BURDEN OF PROOF ON THAT DEFENSE

37. RESPONDING TO AFFIRMATIVE DEFENSES  How should plaintiff respond to an affirmative defense?

38. RESPONDING TO AFFIRMATIVE DEFENSES  All affirmative defenses are AUTOMATICALLY DENIED under 8(d). No response is required.