44. Is the court likely to consider the grocer's defenses?

Motions are typically contained in papers that are separate from the pleadings. They are heard and/or decided separately from the merits of the case, or on certain occasions, heard at the time of trial and disposed of then. Certain defenses may be raised either in the answer or by motion. These defenses are known as Federal Rule of Civil Procedure (FRCP) 12(b) defenses. They are directed solely at the pleadings and must be decided only by reference to them.

If the defendant believes that the plaintiff's complaint does not state a legally sufficient claim, the defendant can make an FRCP 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. For this motion to be successful, it must demonstrate that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.

FRCP 12(b)(6) motions to dismiss are generally made before defendants file their answers. After the defendant files an answer and the pleadings have been completed, the defendant can then challenge the sufficiency of the complaint by an FRCP 12(c) motion for judgment on the pleadings. In substance, an FRCP 12(c) motion is exactly the same as a 12(b)(6) motion, except that a motion for judgment on the pleadings is made after the defendant has filed their answer.

B is correct. Certain defenses must be presented in the first pre-answer motion, or if there is no pre-answer motion, then in the answer. The defenses that must be presented in the first pre-answer motion, or if there is no pre-answer motion, then in the answer, (to not be waived) are lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. The defense of improper venue must be raised in the first motion or else it is waived. However, the defense of failure to join a party is not one of the defenses that is automatically waived and may be raised by a later motion.

Here, the court is therefore likely to hear the defense of failure to join a required party, but not the defense of improper venue, as it has been waived after the grocer filed its first responsive pleading.

A is incorrect. On the contrary, the court should hear only the failure to join a required party defense, as it has not been waived, but not hear the improper venue defense, which has been waived, as stated above.

C is incorrect. Only the defense of improper venue was waived; the defense of failure to join a required party is not a defense that must be raised in the first motion and therefore may be considered by the court in a later motion.

D is incorrect. The defense of improper venue should not be considered by the court because it was not raised in the first motion and consequently was waived. However, under 12(h), certain 12(b) defenses are NOT required to be included in the first responsive pleading, including the defense of failure to join a required party (applicable here), in addition to the defenses of failure to state a claim upon which relief can be granted and lack of subject-matter jurisdiction.