Sunday, January 29, 2017

Rule 12 Defenses "Flowchart"

Here is my attempt to crystallize whether or not you can assert the different defenses under Rule 12. I'm not saying this is right, so feedback is always welcome.

Rule 12 Defenses Flowchart

Can you assert a 12(b) defense?

  1. 12(b)(1) Lack of Subject-Matter Jurisdiction: At any time a court must dismiss an action if it determines it lacks of subject-matter jurisdiction. No limit on asserting this defense.
  2. 12(b)(2)-(5) defenses: Was a prior Rule 12 motion made when the defense was available but omitted?
    1. Yes = defense waived according to 12(h)(1)(A).
    2. No. Was a responsive pleading required to be filed?
      1. No. Defense may be brought at trial, by motion prior to the responsive pleading, included in a responsive pleading, or in an amended pleading.
      2. Yes. Has the responsive pleading been filed?
        1. No. The defense may be asserted by motion prior to the responsive pleading, included in the responsive pleading, or included in amendment as a matter of course under 15(a)(1); else the defense is waived under 15(h)(B)(ii).
        2. Yes. The defense may be included in an amendment as a matter of course under 15(a)(1). Otherwise the defense is waived under 15(h)(B)(ii).
  3. 12(b)(6)-(7) defenses: Was a prior Rule 12 motion made when the defense was available but omitted?
    1. Yes. Defense may be raised under any 7(a) pleadings, as part of a 12(c) Motion for Judgment on the Pleadings, or at trial.
    2. No. Defense may be raised by a Rule 12 motion, or by any 7(a) pleadings, as part of a 12(c) Motion for Judgment on the Pleadings, or at trial.