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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 29658
Experience:  29 years in civil, probate, real estate, elder law
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I forgot to specifically ask you in my last question, is my

Resolved Question:

I forgot to specifically ask you in my last question, is my time to respond to a motion to dismiss 21 days?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your follow up question.It appears that you would only have 14 dyas here to respond to the Motion to Dismiss under Rule 12b. please read this article and go down to the footnotes as it covers these in detail and how to count days.Also you want to double check the local rules to see if this has a different deadline.I gave you those in your prior question.

RayAnswers :

Here is the relevant protion..

RayAnswers :

"


Answer/Motions to Dismiss


Prior to this recent change, an answer or motion to strike or dismiss generally had to be filed within 20 days after service of the complaint. See id., and 12(f) (pre-Dec. 1, 2009). Under the new Federal Rules, an answer or motion to strike or dismiss must be filed within 21 days. See Fed. R. Civ. Pro. 12(a)(1)(A)(i), 12(b), and 12(f). Similarly, a pleading could be amended any time within 20 days of service of the complaint, but now the time period has been extended to 21 days. Compare Fed. R. Civ. Pro. 15(a)(a)(1) (pre-Dec. 1, 2009) to Fed. R. Civ. Pro. 15(a)(1). Responsive pleadings required after denial of a Rule 12 motion previously had to be served within 10 days after notice of the court’s action. See Fed. R. Civ. Pro. 12(4) (pre-Dec. 1, 2009). With the change, the time period is now 14 days after notice of the court’s action. See Fed. R. Civ. Pro. 12(a)(4). If a motion to amend has been granted, the time period for answering the amended complaint has been modified from 10 days to 14 days. Compare Fed. R. Civ. Pro. 15(a)(3) (pre-Dec, 1, 2009) to Fed. R. Civ. Pro. 15(a)(3)."

RayAnswers :

Federal rule here on motions..

RayAnswers : Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a) Time to Serve a Responsive Pleading.


(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:


(A) A defendant must serve an answer:


(i) within 21 days after being served with the summons and complaint; or


(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.


(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.


(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.


(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.


(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.


(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:


(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or


(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.


(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:


(1) lack of subject-matter jurisdiction;


(2) lack of personal jurisdiction;


(3) improper venue;


(4) insufficient process;


(5) insufficient service of process;


(6) failure to state a claim upon which relief can be granted; and


(7) failure to join a party under Rule 19.


A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.


(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.


(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.


(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.


(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:


(1) on its own; or


(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.


(g) Joining Motions.


(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.


(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.


(h) Waiving and Preserving Certain Defenses.


(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:


(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or


(B) failing to either:


(i) make it by motion under this rule; or


(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.


(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:


(A) in any pleading allowed or ordered under Rule 7(a);


(B) by a motion under Rule 12(c); or


(C) at trial.


(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.


(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

RayAnswers :

I would definitely try to be early here with any response.I know it takes time to prepare but Federal Judges overall are real strict.They have life tenure and they act like it sometimes.

RayAnswers :

To me they are les forgiving than state court judges for pro se parties.

RayAnswers :

I wish you good luck here.I appreciate the chance to help you tonight.

RayAnswers :

Thanks again for the chat.

RayAnswers :

Remember complaints and answers pertain to the lawsuit pleading.A motion to dismiss pleads the certain defenses set out above and you are responding to the motion while also amending your complaint.To a degree its apples and oranges although all pertain to the fruit salad which is the law suit.I hope that is a sort of good analogy.

RayAnswers :

Overall federal pleadings are real strict and these type of motions force you to correctly plead your case or face dismissal and then refiling.If this were to be dismissed here without prejudice for say bad pleadings you can refile your lawsuit.You would of course have to pay for a new filing.Again the lawyer is trying to skirmish here and use his legal skills to get this dismissed and delayed.

RayAnswers :

Overall federal court is a higher level of litigation.The federal rules are more strict the judges are of an independent nature and not accountable to anyone since they have life tenure.

RayAnswers :

Just want to try and give you some flavor here not trying to scare you off.

Customer:

I'm still not seeing a definite time but today is actually the 14th day for the first motion that was filed. I always seem to think of these things at the last minute. I guess I'll just go ahead and fax it over to the court tomorrow and hope for the best. Since there are two more 12(b)(6) motions that were filed later and I will be doing an amended complaint, do you think the judge would wait till everything's in and rule on everything using the amended complaint?

RayAnswers :

Yes and you do not have to respond here court can rule on his motion and your amended complaint.If the complaint is compliant after amendment then his motion may be denied as moot.

RayAnswers :

Good luck to you.Thanks for your pateince.

RayAnswers :

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.



 



 



 



 



 



 



 



This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

RayAnswers :

Have a great fourth of July.

Customer:

Sorry to drag this out but I want to make sure I understand. So you're saying if I get my amended complaint in by the deadline, then his 12(b)(6) motion would probably be denied as moot? And whether I respond to his motion at this time is either optional or unnecessary?

RayAnswers :

Yes if you amended here and took care of th defect the motion should be moot here and over ruled.The goal of the other side would be to force you to amend or face dismissal.Since you amended assuming you did so correctly you would prevail here.I wish you the best.Thanks again.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29658
Experience: 29 years in civil, probate, real estate, elder law
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