Responses to Complaint:

1. D. may first file a Pre-Answer Motion under Rule 12 (Optional)

2. Then the Defendant must Answer the Complaint or Default

3. Option of adding claims and impleading other parties

Pre-Answer Motions to Dismiss - Rule 12

1. Policy considerations: protect defendant from inappropriate suits through immediate dismissal

   1. tactical advantage of pre-answer motions - adds time to answer complaint

2. All FRCP 12(b) motions are procedural, except 12(b)(6) - failure to state a claim on which relief can be granted, which challenges merits of complaint

   1. 12(b)(6) motion stipulates even if the plaintiff were to prove all the allegations in the complaint, she would still not be entitled to any relief.

Disfavored defenses

1. under 12(h)(1): waived if omitted from pretrial motion -

   1. 12(b)(2) - Lack of personal jurisdiction

   2. 12(b)(3) - Improper venue

   3. 12(b)(4) - Insufficient process

   4. 12(b)(5) - Insufficient service of process

   5. All of these are disfavored because they are curable defects

   6. The 12(g)(2) limitation on further motions if a defense is omitted from earlier motion applies to these 12(h)(1) least favored defenses.

      1. one shot - can't make one disfavored defense and then come back and make another

Favored defenses

2. under 12(h)(2): can be made in any pleading, motion for judgment, or at trial

   1. 12(b)(6) - Failure to state a claim upon which relief can be granted

   2. 12(b)(7) - failure to join a required party under Rule 19

Most favored defense

3. under 12(h)(3): may be made at any time

   1. 12(b)(1) - lack of subject matter jurisdiction

2. Note: Lack of subject matter jurisdiction under 12(b)(1), lack of personal jurisdiction under 12(b)(2), and improper venue under 12(b)(3) are fatal to the P, while the court may allowed amended pleadings under the others.

FRCP 55: Failure to Answer: Default

3. If the Defendant fails to Answer a Complaint within time allotted (usually 21 days - 12(a)(1(A)(i)), the Plaintiff may request Default Judgment under Rule 55

   1. 55(a): Entry of Default - clerk enters if D. fails to respond to a complaint

      1. Clerical matter - a prerequisite to a default judgment

   2. 55(b): Default Judgment - binding decision

      1. 55(b)(1) - A clerk may default judgment under if plaintiff's claim is for a certain sum

      2. 55(b)(2) - A judge may enter default judgment and conduct hearings to determine damages

Defendant's response to default: Rule 55(c) for entry of default or 60(b) for default judgment

3. 55(c): setting aside an entry of default or default judgment

   1. An entry of default may be set aside for good cause

      1. Shepard v. Darrah (6th Cir. 1986) p. 200 - An entry of default was entered under Rule 55(a) because D's attorney forgot to check the length of a time extension scheduled by his secretary. The entry of default was reversed under the 55(c) good cause standard - although Defendant was culpable, his conduct was not willful, and Plaintiff suffered no prejudice

         1. Policy implications - don't prejudice client

         2. Rule: Given a Rule 55(c) motion to set aside entry of default judgment, court will consider:

            1. Whether the plaintiff will be prejudiced

            2. Whether the defendant has a meritorious defense

            3. Whether culpable conduct of the defendant lead to the default

   2. Other notes:

      1. Sometimes defense will want a default because only damages are at issue (insurance companies concerned

      2. Could Defendant's attorney have been...

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