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6 Cards in this Set

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  • Back
Defenses that can be rainsed by Answer or Motion

Stem from FR 12b. Include:
1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficiency of Process
5. Insufficient Service
6. Failure to state a claim
7. Failure to join a necessary party.
Time to make Motions (w/ respect to trial)
- The defenses in 12b2-5 must be made BEFORE trial.
- 12b6 & 7 may be mde either BEFORE OR AFTER trial.
- 12b1 (SMJ) maybe made even after the trial. Can also be made by the court if neither party brings it.
Rule 12b6 Motion If Granted or Denied

(Failure to State a Claim)
- If the motion (to dismiss) is granted, P may amend the action and proceed in trial OR appeal the decision on the motion.
-If the motion is DENIED, the D may anser the motion or allow wa Default Judgment to be entered and then appeal the 12b6 motion.
Motion for a more definite statement
12e: can be made if the complaint is too vague or ambiguous to warrant a responsive pleading.
Waiver of Defense (12g and 12h1)
-If the 12b motion is made all defenses that are available at the time must be made together or the right to utilize that defense is waived. Look to rule 15 to amend the pleading
Motion to Strike (12f)
If the plaintiff has included redundant, immaterial or scandalous material in the complaint, the D can move to have this material stricken.