Civil Procedure – Feb 4.pptVIP

Civil Procedure – Feb. 4 Affirmative Defenses Rule 20 Practice Problem Review Rule 12 defenses “Then available” Rule 12 procedural defenses (12(b)(2) – (5), 12(e)) must be consolidated either in a pre-answer motion or in the answer if no pre-answer motion is made. Failure to raise these in pre-answer motion or answer results in waiver. Policy: these are really technical procedural motions and we don’t want the trial delayed by repeated procedural motions. The goal: trial on the merits. 12b6 12b7 go more to substantive issues and thus there is more leeway in terms of pleading those. 12b1 – lack of smj - may be raised at any time b/c if the court doesn’t have power to hear the case, any decisions it makes will be moot. Review – Answering the complaint For each allegation in complaint, must either admit, deny, or deny b/c of lack of information or knowledge; if part of the allegation is true, must admit the part that is true and deny the rest; failure to deny means the allegation is deemed admitted. 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. Affirmative Defenses (Rule 8(c) what is an affirmative defense? (explain it to your neighbor) Affirmative defenses What does Rule 8 (c ) require if you have an affirmative defense? Why? If you allege an affirmative defense, can you decide later not to pursue it? Laymen v. Southwestern Bellcb p. 387 What did plaintiff allege? How did defendant respond? What’s the issue? What’s the holding/reasoning? Laymen cont’