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Replies to post #125379 on Plastic2Oil Inc (PTOI)
Pre Answer Motion
At common law and in code pleading jurisdictions a challenge to the substantive sufficiency of a complaint or an answer is termed a "general demurrer." Under the Federal Rules, demurrers have been abolished. Instead, we have the motion to dismiss for failure to state a claim (FRCP 12(b)(6)) and a motion to strike an insufficient answer. (FRCP12(f)) From a functional point of view these motions operate exactly as do general demurrers to the complaint or to the answer. Each asks whether, even if all the allegations are true, the pleader has stated a valid claim or defense under the law. (Friedenthal § 5.22)
FRCP 12(b)(6) must be read in conjunction with FRCP 8. Because Rule 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," few pleadings are likely to fail under Rule 12(b)(6). It is most effective to attack pure questions of law; e.g., is the statute of limitations a bar? Does the statute of frauds preclude enforcement of the contract?
Rule 12(b) motions include all the threshold motions to dismiss for lack of jurisdiction, insufficiency of service of process, failure to state a claim, or failure to join an indispensable party. All Rule 12(b) motions must be brought at one time and must be made before the filing of a substantive pleading such as an answer.
Waiver of Preservation of Certain Defenses The defenses of lack of jurisdiction over the person, improper venue, insufficiency of process and insufficiency of service of process are waived if not included in a Rule 12 motion, or, if no such motion is made, if they are not included in the responsive pleading or an amendment as of right to that pleading. The defenses of failure to state a claim upon which relief can be granted; failure to join an indispensable party under FRCP 19, and failure to state a legal defense to a claim may be made in any pleading permitted under FRCP 7, or by a motion for judgment on the pleadings, or at the trial on the merits. Most courts consider the defense of failure to join an indispensable party jurisdictional and therefore never waived. The defense of lack of subject matter jurisdiction is never waived.
