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Waiver of Defenses
R12 Main points:
Not waivable/anytime defenses: SMJ—can be brought up at any time Failure to state a claim/failure to join a necessary party:
- if you forgot it in the pre-answer motion, you can't bring it up in a second one (unless it was not available to you at the time); but you can bring it up in your answer or afterwards in a motion for judgment on the pleadings.
(B/c if there is no violation of law, it makes sense to be able to dismiss the litigation at any point.)
PJ, Venue, Process, Service: Waivable defenses:
- all treated as rights of the defendant, can be waived by failure to bring them up in a timely fashion
If a PAM submitted, it must be in the PAM. Can’t be brought up in 2nd PAM, unless it was not available at the time of the 1st PAM.
If first response is an answer, then it must be in that answer (unless you bring it up in an amendment of right/matter of course w/in 21 days).
Sidebar for Joe’s laughter: According to Prof. Green, there is a low threshold for laughter, b/c we are all starved for levity in law school.
Hypothetical: P serves D in a battery suit, D makes a motion to dismiss for lack of PJ within 21 days D cannot make another pre-answer motion to dismiss for improper venue: should have done it in the first motion D likely can't bring up failure to state a claim in a second pre-answer motion, but can do so in his answer D can bring up SMJ in a second pre-answer motion (or at any time)
Hypothetical: P serves D in a battery suit, D answers in 21 days D can include the defense of lack of PJ in his answer D can make a motion to dismiss for lack of SMJ after the answer D can ask for judgment on the pleadings based on failure to state a claim after the answer D cannot make a motion to dismiss for insufficient service after the answer: must do so in the answer itself D can save the defense of insufficient service by including it in the answer by an amendment under Rule 15 "as a matter of course" Hypothetical # P serves D in suit for battery, D makes a motion for a more definitive statement and a motion to dismiss for lack of PJ court grants the motion for a more definitive statement, but denies the motion to dismiss P responds with a more definitive statement, serving D with an amended complaint D makes a motion to dismiss for failure to state a claim and a motion to dismiss for insufficient service Result: failure to state a claim probably can be entertained by court, because probably was not available at time of first PAM, insufficient service is waived (unless you can show that defense wasn't available at time of first PAM, which is very unlikely)
Amendment: (R15)
Talking about pleadings (not motions)
15(a)(1) Amending as a matter of course. (of right)
One amendment as a matter of course
a. w/in 21 days of service, or b. if the pleading is one to which a responsive pleading is required (e.g. a complaint), 21 days after service of a responsive pleading or 21 days after service of a motion under R12(b), (e), or (f), whichever is earlier.
Hypothetical: D leaves a defense of PJ out of his answer (first response to P's complaint), D's answer contains an affirmative defense, P requests a reply to D's answer, the court
Scheduling order
Sometimes the scheduling order will include a limitation on amendments. (Say after depositions or some other mutually agreed-upon time) – if so, then to try to get an amendment beyond the deadline will be more difficult
Beeck v. Aquaslide (8th Cir. 1977)
Counterfeit slide case. Δ’s Amendment was really late, but allowed. Amendment was that Δ changed its admission that it manufactured the amendment to a denial. π was worried bc SOL had expired, so π could not bring a claim against the counterfeiter if it turns out to be a counterfeit. (Sometimes the SOL clock may be tolled)
Undue delay?:
Unlikely. Three other investigators had said it was an Auquaslide slide, so Δ’s delay is understandable. BUT President of Δ might have some knowledge that the investigators would not have had.
Bad Faith?:
Did they wait on the counterfeit argument until it was hard for the π to refute it? Did they want the SOL to run out? That would protect the counterfeiters, which would not benefit the Δ at all. So probably not bad faith.
the people who benefit from letting the statute of limitations run out here would be the counterfeiters, which is why this case is not a question of bad faith
Prejudice to π?:
Well, it’s always difficult to respond to amendments. Where does the prejudice come in to play? Lack of ability to sue a 3rd party is not the type of prejudice to the π that is relevant. It really only matters between the parties. Not allowing the amendment would almost be prejudicial to the Δ. Why should Δ be sued for a product that they didn’t make (if in fact it turns out to be counterfeit)?
prejudice argument: it would be prejudcial not to let the amendment go through, because it shows that the wrong person is being sued
Sidenote: you can sometimes keep the SOL from running out by suing a John Doe...
What standard does the appeals court use to assess a district court’s decision to allow/deny an amendment. Should the appeals court reverse the decision when it concludes that it would have decided differently if it were in the district court’s place? No
- that is a de novo standard of review. Here the standard is abuse of discretion.
Abuse of discretion (AoD) standard of review: whether the trial court was within their field/sphere of discretion (rights, boundaries).
De Novo standard of review: Appeals court uses their reasoning as does the trial court, and can reverse if they come to a different conclusion.
A decision to amend is subject to abuse of discretion standard. (Too fact intensive. The trial court is uniquely able to weigh the facts, which the appeals court cannot appropriately do.)
Rule 11 sanctions are also subject to AoD standard.
PJ review is de novo standard, as are almost every case we have read to this point in law school.
Relation Back of Amendments (c)
About the SOL, allowing amendments to fall under the Sol when it has run out since the original pleading date. IF:
A) the law about the SOL allows relation back; B) the amendment is about the same cause of action set out—or attempted to be set out--in the original pleading; or
