Question

David files a complaint for assault against Goliath. Goliath timely files a motion to dismiss for insufficient service of process. Several months later, the judge denies the motion to dismiss and notifies the parties. May Goliath, after being notified of the denial of his motion,

a. answer the complaint and respond on the merits to its allegations?

b. move to dismiss for lack of personal jurisdiction?

c. move to dismiss for failure to state a claim upon which relief can be granted?

d. answer and include the defense that the complaint fails to state a claim upon which relief can be granted in the answer? e. move to dismiss for lack of subject matter jurisdiction?

Answer 1

ANSWER A-Yes,Rule 12b permits him to assert certain preliminary defenses. In the event that the pre-answer movement is denied, nonetheless, the litigant should then record an answer.Rule 12(a)(4) requres an answer within 10 days after he receives notice of denial.

ANSWER B-No, Rule 12(g) requires that avialable all pre-answer motions defenses be made at the same time.

ANSWER C-Yes. the 12b6 objection may be raised in the answer even though it was ommitted from the pre-answer motion. Rule 12(h)(2) expressly provides that this defense may be raised in any pleading permitted under rule 7(a).

ANSWER D-Rule 12(g) provides that all 12(b) defenses must be made at one time "except as provided in subdivision 12(h)(2)" Rule 12(h)(3) provides that the objection of subject matter jurisdiction may be raised at any time.