37. Is the court likely to grant the buyer's motion to strike?

The guiding principle of pleading under the Federal Rules of Civil Procedure (FRCP) is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow the other parties to make pre-trial and trial preparation. The first pleading in a civil case is the complaint, which is filed by the plaintiff and sets out a short and plain statement of the court's jurisdiction and states a claim that shows the pleader is entitled to relief, as well as identifies the relief sought.

After the plaintiff files the complaint, the defendant usually has several options. Prior to filing an answer, the defendant may, if he chooses, file a motion and raise any or all of the following defenses under FRCP 12(b):

(i) lack of jurisdiction over the subject matter;

(ii) lack of jurisdiction over the person;

(iii) improper venue;

(iv) insufficiency of the process;

(v) insufficiency of service of process;

(vi) failure to state a claim upon which relief may be granted; AND/OR

(vii) failure to join a necessary party.

The first defense, lack of subject-matter jurisdiction, may be raised at any time. However, the defendant MUST raise defenses (ii) through (v) at the time he files a motion or his answer (or an amendment as of right thereto), whichever is first. If he does not, the defendant waives these defenses. The defendant may choose not to file a motion and instead raise these defenses in his answer.

D is correct. The court should strike only the defense of lack of personal jurisdiction, which the seller waived. When the seller moved to dismiss the buyer's complaint based on the failure to join the manufacturer as an indispensable party (which was the first responsive pleading), he did not raise the defense of lack of personal jurisdiction, which amounted to a waiver.

A is incorrect. The court should grant the seller's motion to strike, but in part, because the seller DID waive the defense of lack of personal jurisdiction by failing to raise it in the pre-answer motion to dismiss, but the seller did NOT waive improper venue as a defense, which only became available after the manufacturer was joined.

B is incorrect. The buyer's motion was timely, however, for only one asserted defense. Although the court should strike the defense of lack of personal jurisdiction for the reasons explained above, it should NOT strike the seller defense for improper venue. The buyer brought suit against the seller in State A, the seller's home state. When the seller was the only defendant, State A was a proper venue.

However, when the manufacturer from State C was added to the buyer's suit, the seller was then granted the ability to raise improper venue given that the manufacturer and seller are from different states. Even if a court were to find that venue is proper in State A because of the seller's residence in State A, once the manufacturer was added to the suit, the seller was permitted to raise improper venue as a defense.

C is incorrect. The court should not strike improper venue as being waived because the objection to venue only became available to the seller after the manufacturer was joined as an indispensable party. Therefore, the first opportunity for the seller to raise the objection was in his answer to the amended complaint. As such, the seller's improper venue defense was not waived.