Rule 12 outlines all the rules related to responding to the complaint by saying what should be said in the answer. We can bring 12(b)(2-5) motions to dismiss either before or with the after, just not after. However, all 12(b)(2-5) motions to dismiss need to be brought together. If you “string-them-out” all other later motions to dismiss are waived.

Interestingly, a 12(b)(6) is not waived, it could be brought up later. However, you are only allowed to bring 12(b) motions at the same time before the answer. If you still have 12(b)(1, 6) after previously having a 12(b) hearing, you must wait until the answer to respond.

Matos v. Nextran, Inc.

2009 WL 2477516 (D.V.I. 2009).

Our pleading requirements apply to each claim individually. Each claim made in the complaint must be plausibly stated. If there are 4 claims in a case, and 1 is not properly pleaded, the defendant can bring a 12(b)(6) to attack only the one that is not properly pleaded.

Alternatively, the defendant can bring a 12(e) and a 12(f).

  • 12(b)(6) motion to dismiss a claim
  • 12(e) motion for a more definite statement
  • 12(f) motion to strike a claim

The reason why the defendant is asking for a 12(e) is to make the complaint more clear. Sometimes the complaint is just confusing and requires a court order to rewrite a certain part of the complaint. Here, the writing does not have to be beautiful, it just needs to be intelligible. Although it was not well written, you could tell what it was saying.

A 12(f) motion to strike words from the complaint. Here, the plaintiff had claimed illegal conduct, in other words, criminal conduct. Because this is a civil court, the defendants asked for those references to be stricken. Along with this, the defendant could have brought a Rule 11 for Sanctions because it was being “brought for an improper purpose such as to harass.” Here, however, 12(f) motions should be stricken in only extreme situations.

Instead of just granting the 12(b)(6) the plaintiffs were afforded the opportunity to amend their complaint.

Hunter v. Serv-Tech, Inc.

2009 WL 2858089 (E.D. La. 2009).

The defendant had originally brought a 12(b)(5) and realized later (after it was unsuccessful) that they should have brought a 12(b)(2). The issue here is that it was brought later when it should have brought together. Consequently, the 12(b)(2) was waived.

These rules are organized under rule 12(g). All the waived motions could be brought together either before or with the answer. However, they are not allowed to be brought separately.

Another thing to note under 12(h) is that the 12(b)(2-5) must be brought in the first responsive pleading. The thing to note is that the 12(b)(1, 6) can be brought at any other time as long as it is after the answer (if a different 12(b) was made earlier).

Ingraham v. United States

808 F.2d 1075 (5th Cir. 1987).

This case outlines the rules for affirmative defenses. One example of an affirmative defense are the statute of limitations. As long as the injury occurred after the timeline, the claim could be dismissed for running past the statute of limitations. Most of the time, there is a statute of limitations timeline for 1-3 years (except for exceptional cases such as murder).

However, the affirmative defenses need to occur in the answer. Otherwise, the defense is waived. Here, the affirmative defense was placed in the appeal. Thus, the defense was waived. Why?

“Central to requiring the pleading of affirmative defenses is the prevention of unfair surprise. A defendant should not be permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.”

These rules are outlined in Rule 8(c).


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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