Section A audio; Section B audio. We will go an extra 10 minutes (first one) tomorrow.
Prep all remaining parts of Rule 12, along with PAE and both sections of Glannon reading.
• Go through the 7 12(b) defenses. What are they? And should dismissal be with or without prejudice?
• What is the connection between FRCP 8(a)(2) and FRCP 12(b)(6)?
• For purposes of 12(b)(6), a complaint may be "legally" insufficient or "factually" insufficient. What is the difference between them? And what should the terms of dismissal be for each? Consider the bases for dismissal in PAE, Naruto (if granted), and Question B on Glannon p.404.
• Read FRCP 12(g) and 12(h) carefully. What is the connection between them?
• FRCP 12(h) divides the 12(b) defenses into 3 groups, in terms of how easily the defenses can be lost? What are the three sets of rules? Why have different rules for the 3 categories? What do they have in common to be subject to that rule?
Waiver Puzzles: Work the following and consider whether the defendant can include these defenses in the later filing.
A v. X. X files a 12(b)(5) motion; the court denies. X files an Answer including (b)(2) and (b)(7).
A v. X. X files a 12(b)(3) motion; the court denies. X files an Answer; then X files a 12(b)(1) motion.
A v. X. X files an Answer with no 12(b) defenses. 4 weeks pass. X files an Amended Answer with (b)(2) and (b)(6) defenses.
A v. X. X files a 12(b)(1) motion; the court denies. X files a 12(b)(6) motion. [For this, consider the question of whether the defense is waived and whether X can raise the defense in this motion. Be ready to argue both sides on this, based on the text of the rules and other considerations].
