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19. What is the tennis player's strongest response to the reporter's answer?
The reporter then filed an answer raising two affirmative defenses: (i) the court lacks personal jurisdiction; and (ii) the action is barred by the statute of limitations.
A tennis player from State A filed a diversity action in State B federal district court against a reporter from State B. The tennis player alleged that the reporter failed to pay a debt due on a valid contract. The reporter filed a motion to dismiss for improper venue, which the court denied.
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lack of subject-matter jurisdiction;lack of personal jurisdiction;improper venue;insufficient process;insufficient service of process;failure to state a claim upon which relief can be granted; andfailure to join a necessary party under FRCP 19.The defendant then responds with an answer. After filing the answer, the defendant can file a motion for judgment on the pleadings, a motion for a more definitive statement, or a motion to strike.
B is correct. The tennis player should file a motion to strike only the affirmative defense for lack of personal jurisdiction because, under FRCP 12(b)(2), that defense has been waived. When the reporter filed the motion to dismiss and failed to include the defense of lack of personal jurisdiction, he waived that defense and thereby consented to jurisdiction. However, the defense regarding the statute of limitations is not required to be raised before the answer under FRCP 12.
A is incorrect. This answer is only partially correct. While the tennis player's attorneys should file a motion to strike the reporter's lack of personal jurisdiction defense, it would be improper to assert that the defense as to the statute of limitations is waived. As explained above, FRCP 12 defenses that must be raised before filing an answer do not include the statute of limitations defense.
C is incorrect. Again, it would be improper to file a motion to strike the statute of limitations defense because it has not, in fact, been waived. But the tennis player's attorneys should file a motion to strike the lack of personal jurisdiction defense, which was waived when it was not raised before the answer was filed.
D is incorrect. Without moving to strike the reporter's lack of personal jurisdiction defense, the tennis player's attorneys would be missing the opportunity to raise a valid argument foreclosing this affirmative defense. Again, the reporter waived the lack of personal jurisdiction defense, which means the tennis player's attorneys should move to strike it.