Civil Procedure Jan. 30

1. Civil Procedure Jan. 30 Pre Answer Motions & Answers

2. Review • Rule 18 allows for a party to join all claims she has against an opposing party in a single action. Rule 20 allows for multiple plaintiffs and/or multiple defendants as long as they assert a right to relief arising out of the same t/a or occur or series of t/as or occurrences & there is A common ? of law or fact. • Caveats: these rules are limited by smj/venue & pj and the court has the discretion to sever the claim if it will serve the interests of justice to do so

3. Answering a complaint • What happens after you or your client has been served with a complaint and summons – what are your options?

4. Questions p. 378 Who drafts the answer? Who drafts pre-answer motions? Who signs these? After it is drafted, what do you do with the answer or pre-answer motions?

5. Query • If you choose not to make a pre-answer motion, can you add all your Rule 12(b) defenses to your answer?

6. Query • Tactically, why would a defendant bother with a pre-answer motion if she can raise all her defenses in her answer? • Tactically, why would a defendant answer if she has the option of making a pre-answer motion?

7. Drafting a Motion Assume you wanted to draft a pre-answer motion. Where would you look to determine the form it should be in and how to draft it? Where would you look to see what must be included?

8. Questions on p. 380 • 1a. What kind of order does a defendant seek in a pre-answer motion? • 1c. What happens if a 12b motion is granted? What happens if it is denied?

9. Hypo • On December 26, 2007, plaintiff files her lawsuit. The complaint and summons are served on January 2, 2007 by the sheriff. If the defendant responds with a pre-answer motion, when must that motion be filed and served? • What if the defendant waives service of the summons – when is the motion due? • What if do you do if you want more time in which to respond to the complaint (either via motion or in an answer)?

10. Motions to strike and for a more definite statement • Move for a more definite statement if complaint is incomprehensible (rarely used b/c either 12b6 or figure it out in discovery) • Move to strike of extraneous material in complaint & its prejudicial (again, rarely used b/c it’s often a waste of time since in most cases, the only one seeing complaint is the judge and she says – I’m not going to be prejudiced)

11. hypo • On July 1, 2008, A files suit against B & C. They are both served on July 2. On July 20, B files a motion to dismiss for failure to state a claim and for improper service. • On July 24, may A move for entry of default for failure to respond to the complaint against B? Against C? • On August 14, 2008, the court notifies B that her motion has been denied. What must B do now and when is her deadline?

12. hypo • A v. B for negligence, strict liability, breach of warranty, and nuisance. B files a pre-answer 12b6 motion on the nuisance and strict liability claim. Can B delay answering the complaint until the court decides her pre-answer motion?

13. And the correct motion is???? • Defendant believes that there is not complete diversity • The summons was not signed by the clerk of court • The summons was delivered to defendant’s daughter (age 9) • The claim is outside the applicable statute of limitations

14. Trap for the unwary • Defendant files a 12b6 motion or a 12c motion and accompanies it with affidavits and other evidence. What has happened to that motion to dismiss? What should the plaintiff do?

15. p. 381 problem #6 • A sues B. Before answering, B moves to dismiss for failure to state a claim. The motion is denied. • 1. Can B now move to dismiss for improper venue? Why/why not? • 2. Can B now move to dismiss for failure to join an indispensable party? Why/why not? • 3. Can B move for a more definite statement under 12(e)?

16. Problem #6 p. 381 • A sues B. B makes a pre-answer 12b6 motion and the motion is denied. • 4. Can B include the defense of insufficiency of process in her answer? Why/why not? • (5 – answered last ppt) • 6. Can B now move to dismiss for lack of smj – why/why not?

17. Prob p. 381 6 b • C sues D. Without making a pre-answer motion D answers. The answer consists solely of denials of the material elements of the complaint. • 1. Can D move to dismiss for improper venue? • 2. D wants to have the complaint dismissed for failure to state a claim. How does Dan achieve this result? • 3. Can Dan move to amend his answer 3 months later and include a defense of improper service?

18. Problem p. 381 #6c • E sues F, and within the proper time, F answers denying the material elements of the complaint and including the defense of improper venue. What happens to that defense from here on?

19. hypo • You file your pre-answer motion for lack of personal jurisdiction and two weeks later, you realize you left out your motion to dismiss because of improper service. Anything you can do at that point?

20. hypo • Defendant moves for a more definite statement (12(e)). Court grants her motion and the plaintiff files an amended complaint. May defendant now move to dismiss for improper venue and improper service of process?

21. Summary – see 12(g) &(h) • Which defenses are waived if not made either in a pre-answer motion or the initial answer? Why are these defenses waived if not raised immediately? • Which defenses are preserved?

22. Policy • Why can a motion to dismiss for lack of smj be made at any time? • When a party is indispensable (i.e. the court can’t order their joinder) why can a motion to dismiss on those grounds be made at any time? (note that there is a distinction btwn a necessary party who can be joined and an indispensable party who can’t be joined – see p. 334) • Why would you allow someone not to immediately raise a 12b6 motion?

23. hypo • A files a complaint and during discovery finds out that she has a willful and wanton negligence claim based on the same underlying conduct that was the subject matter of her original claim. In answering the amended complaint the defendant realizes that there a potential personal jurisdiction and venue issue which he missed in answering the original complaint. May he raise these defenses in his answer to the amended complaint? Why/why not?

24. Answering allegations • Rules 8(b)& 8(d) (and R. 11) govern answering the allegations in a complaint. • Ways to answer an allegation • 1. Admit or deny the entire allegation (specific by allegation) • 2. Deny in part, admit in part (specific) • 3. Deny based on lack of information & knowledge (specific) • 4. One denial for entire complaint (general)

25. What is the result? Allegation: The statute states “ . . .” Response: This allegation asserts conclusions of law to which no response is required. Allegation: The contract states “ . . . “ Response: This allegation requires no response as the document speaks for itself. Why would a defendant respond this way? What is the potential result of responding this way?

26. Hypo • Allegation: Defendant decedent was born on July 23, 1958. • Answer: Denied based upon lack of information and knowledge • Is this a proper denial? What issue might you raise in terms of this denial?

27. Zielinski v. Philadelphia Piers p. 382 • What are the relevant facts? • What’s the issue?

28. The allegation & answer • A motor-driven vehicle known as a forklift or chisel, owned, operated and controlled by the defendant, it agents, servants and employees, was so negligently and carelessly managed . . . That the same did come into contact with the plaintiff causing him to sustain the injuries more fully hereinafter set forth” • Answer: Denied • What do you think the plaintiff thought when it saw this denial? • Was this denial true? If so, why did the court force the defendants to admit something that is false?

29. Zielinski cont’d • The court found no bad faith – do you agree that there was no bad faith? If no bad faith or intent to deceive, do you agree with the court’s ruling? (Why/why not) • Re-draft the answer. • Re-draft the allegation.

30. Testing the limits • A, a jogger, is injured when B’s car swerves off the road and hits A. A sues B. How should B respond to the following allegations: • A. The complaint alleges that B has not had his car serviced for the past two years. Although this is true, B knows it will be impossible for A to prove it. • B. The complaint alleges A was running north. B does not doubt that this is true, but did not actually see A running. • C. The same as in (b) except that X , a friend of A, has told B that he was standing 20 feet away and saw A running north.