Civ Pro 2 Notes 9/1/04


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.




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 Clark’s idea about what would happen if a pleading were vague: if you didn’t know what they were talking about, you would file a 12(e) motion, giving the plaintiff the opportunity to replead with enough detail such that the defendant can respond.  You almost never see these used because the courts will dismiss you with 12(b)(6) and not give you another bite at the apple.  After the plaintiff files the complaint, the plaintiff is entitled to discovery, which means that these 12(b) motions are often coupled with requests to stay discovery or to get discovery.  There is also the seldom-used 12(f): a motion to strike!  The court can strike from pleadings “insufficient defenses” or “scandalous matter”.


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!




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.


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