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Law Educator, Esq.
Law Educator, Esq., Attorney
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Is a motion to dismiss based on SOL appropriate before an answer?

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Is a motion to dismiss based on SOL appropriate before an answer? ie, a motion to dismiss was filed by two of the defendants based on rule 12(b) AND SOL. My understanding is that a SOL claim must be an affirmative defense in an answer.
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Yes, the defendants may file a motion to dismiss on any ground under 12b as their first responsive pleading in the suit and this stops their time to answer the suit until the motion is decided.

12b can be raised as affirmative defenses in an answer or also as a separate motion to dismiss.





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Customer: replied 3 years ago.

Is the SOL considered part of a 12(b) motion?

Yes, if the defendant wins on the SOL, there is no need for them to ever file an answer, since the SOL bars the case completely. It is failure to state a claim because there is no valid suit if the SOL is expired.
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