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

Then the Defendant must Answer the Complaint or Default

Option of adding claims and impleading other parties

Policy considerations: protect defendant from inappropriate suits through immediate dismissal

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

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.

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

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

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

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

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.

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

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 sanctioned under USC 1927 (see outline on Rule 11)?

FRCP 60(b): Setting aside a default judgment

1. Stricter standard than 55(c), may set aside for:

2. 60(b)(1) - mistake or excusable neglect (compare to Shepard v. Darrah, where neglect was inexcusable)

3. 60(b)(2) - new evidence

4. 60(b)(3) - fraud, misrepresentation, misconduct

5. 60(b)(4) - void judgment

6. 60(b)(5) - already satisfied judgment

7. 60(b)(6) - any other reason that justifies relief

Must admit or deny each specific allegation under Rule 8(b). Can't just blanket deny, except:

1. Rule 8(b)(3) permits a general denial if party intends to deny everything, or a general denial of anything not admitted. Under common law it was more permissible to make a general denial.

   1. In Zielinski v. Philadelphia Piers (E.D.Pa.1956) p.210, Def. made a general denial of a paragraph in a complaint claiming its agents negligently caused an injury and then attempted to change answer when it found out injuries were not caused by its employees because it had transferred operation of the facility to another party. Court held it was estopped to deny that it operated the facility, in part because Statute of Limitations for Pl. to sue the other operator had run.

   2. Denied that their employees caused an injury, but should have denied that it was their employees who committed the injury

Rule 8(b)(5) - Statement that party lacks information or knowledge sufficient to admit or deny allegation has the effect of a denial.

1. Exception - David v. Crompton & Knowles (E.D.Pa. 1973) p.223

   1. A shredding machine company claimed it lacked information or knowledge of an allegation that it designed, manufactured and sold a machine to Plaintiff...