Thursday audio--Section A, Section B. We will not have class on Friday, January 31; make-up TBD.
Prep all remaining parts of Rule 12, along with PAE and both sections of Glannon reading.
• What does a defendant seek to do with a motion under
12(b)? What are the issues that can be raised on such a motion? What is
the difference between 12(b)(4) and (5)?
• What is the defense argument in the motion in Naruto? What facts and law does it offer?
• Claims or complaints can be dismissed with prejudice or without prejudice. What does that mean? When should a dismissal be with prejudice and when without prejudice?
• What is argued on 12(b)(6)? How does 12(b)(6) relate to 8(a)(2)? What does the court analyze on a 12(b)(6) motion? How does FRCP 12(d) affect that?
•
A complaint can be legally or factually insufficient. What is the
difference? How does that map onto dismissal with or without prejudice?
• 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 serves 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 serves 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].
