Civ
Pro 2 Notes
Notice
that Gomez, on the law, is bad
law. The case says describes the law of
qualified immunity as having two prongs: “objectively reasonable” and “subjectively
reasonable”. But the Supreme Court
changed that law in Harlow v. Fitzgerald
and struck the “subjective” prong. So
now it’s only a single, objective
test. That’s not procedure, but that’s
what the law of qualified immunity is.
Motions
What
are motions? It’s a paper document. When you file a motion, you must know what it
means in the jurisdiction in which you’re filing it. First, you need a document that provides
notice, which is often a single page document that is a notice of filing a
motion. Then you need the motion itself,
which may be short or long depending on the jurisdiction. That’s where you ask the court to do
something. The motion may have supporting
affidavits or other evidence attached to it.
It’s also often accompanied by a brief or memorandum of law in support
of the motion. Often, you also supply a “proposed
order” for the judge to sign if he or she agrees with your motion. In some jurisdictions, you can combine this
stuff together, while in others you can combine it. We’ll just refer to motions in general.
Pre-answer motions – Rule
12(b)
One
of the first motions you would likely file are pre-answer motions. The most popular by far are the 12(b)
motions. If you litigate, you will
consistently have a docket of 12(b) motions to file or respond to. One thing about this motion is that it
affects your answer date. 12(a)(4)(A)
says that if you file any of the 12(b) motions, you don’t have to answer the
complaint until 10 days after the 12(b) motion has been ruled on. That buys you time, so there may be strategic
as well as legal reasons to file these motions.
12(b) is the substantive part of the rule. It tells us that every defense will be
asserted in the answer except certain ones that you can make by motion. That means that we could combine all this in our answer, but there’s no strategic
reason to do so. Here are the motions:
12(b)(1): Lack of subject
matter jurisdiction
12(b)(2): Lack of personal
jurisdiction
12(b)(3): Improper venue
12(b)(4): Insufficiency of process
12(b)(5): Insufficiency of service of process
12(b)(6): Failure to state
a claim upon which relief can be granted
12(b)(7): Failure to join
an indispensable party under Rule 19
There
are other important parts of Rule 12.
Rule 12(e) is a motion for a more definite statement. If the complaint is too vague, the party can
move for a more definite statement. This
was
12(g)
create the “hierarchy” of 12(b) motions.
Not all 12(b) motions are the same.
If a party makes a motion under the rule but omits an available defense,
they can’t make the motion later. You
basically get one shot to make your 12(b) motions,
otherwise you have waived those defenses.
It’s a use-it-or-lose-it rule, except to the extent that 12(h) tells you
differently. 12(b)(2),
(3), (4) and (5) are disfavored defenses and always waived if not brought up right
away. They all have to do with the
propriety of where the lawsuit is taking place and whether it’s proper that you’re
there. 12(h)(2)
tells us that the defenses in 12(b)(6) and (7) are favored and can be used in any
pleading, judgment on the pleadings, or at trial. But you can’t make the motion a second time. So
beware of this trick! 12(h)(3) says that 12(b)(1) is the most favored defense of all, and can be brought up at any time by
anybody, including the court itself!
Hypotheticals
My
opponent files a 12(b)(6) motion for failure to state
a claim. The court denies the
motion. Then they file a 12(b)(3) motion to dismiss for improper venue. What do you do? They can’t file it! They’ve already waived that defense due to
the combination of 12(g) and 12(h)(1). So I respond to this by filing a motion to
deny the 12(b) motion on the grounds that it’s been waived by 12(g) and (h)(1). Nothing happens on its own! You must raise the issue, or else you can
never raise it on appeal (unless it’s subject matter jurisdiction).
Say
the other person files the 12(b)(6) and it gets
denied, but then they file a 12(b)(7) for failure to join an indispensable
party. This is technical. What can we do? They can raise the defense, but they can’t
make the motion. The issue is still alive, based on 12(h)(2), which tells us that we can still raise this. But 12(h) also
says that the issue can’t be raised in another Rule 12 motion. It must be raised in a different way, like in
a judgment on the pleadings or later on at trial. Realistically, the judge will probably be
willing to recharacterize the motion as a motion for judgment
on the pleadings. We don’t want to boot
people out of court for labeling their motions wrong! That’s the whole point of the Federal Rules!
Say
the 12(b)(6) is denied, and then they move for the
12(e) motion for a more definite statement.
Is that valid? Nope. 12(g) says that you have to raise this objection along with your other Rule 12
motions. So you already waived your
12(e) motion, it will be denied. But
what if they had their 12(b)(6) denied and then tried
to do 12(b)(5). No good, under 12(g) and
12(h)(1). 12(g)
says bring them all at once or lose them!
What if they had their 12(b)(6) denied, but
then they come back with 12(b)(1)? The defense
is preserved! Can they do the 12(b)(1) motion? No, they
can raise the defense, but it must be done in some other form. By practice, the courts allow you to raise
this issue by motion, labeling it something different, typically judgment on
the pleadings or summary judgment.
What
if the other side just goes ahead and files a complete answer? Then they want to move to dismiss for
improper venue. Can they do it? Nope! Rule
12(h)(1) says that the defense is waived if it’s
omitted from the answer. 12(g) doesn’t
say anything about an answer! It only
says that if you make a Rule 12 motion, you waive everything else.