All Rule 12 Defenses Are Waived By Omission From The Answer

Subject distribution

• Civil Procedure1

• 17406_oak_choir_stall · CIVIL_PROCEDURE · Choice BYes, all Rule 12 defenses are waived if omitted from the first response.

  Why it's attractive

  The choice overclaims the waiver rule. The Silver Key forces the student to read Rule 12(h)(1) and (h)(2) as separate subsections with different treatment for different defenses.

  Why it's wrong

  The choice overclaims the waiver rule. The Silver Key forces the student to read Rule 12(h)(1) and (h)(2) as separate subsections with different treatment for different defenses.

• 17406_oak_choir_stall · CIVIL_PROCEDURE · Choice CNo, because subject-matter jurisdiction and failure to state a claim are the same.

  Why it's attractive

  The choice conflates two distinct defenses. Both can be raised late, but 12(b)(1) (subject-matter jurisdiction) is never waived, while 12(b)(6) is preserved for later stages but is not the same rule.

  Why it's wrong

  The choice conflates two distinct defenses. Both can be raised late, but 12(b)(1) (subject-matter jurisdiction) is never waived, while 12(b)(6) is preserved for later stages but is not the same rule.

• 17406_oak_choir_stall · CIVIL_PROCEDURE · Choice DYes, failure to state a claim must be raised before answering or never.

  Why it's attractive

  This is the dominant trap. The student treats 12(b)(6) as if it were 12(b)(2) (personal jurisdiction, which is waived). The Gold Key tells the student Rule 12(h)(2) is the explicit textual carve-out that preserves 12(b)(6) for any later stage.

  Why it's wrong

  This is the dominant trap. The student treats 12(b)(6) as if it were 12(b)(2) (personal jurisdiction, which is waived). The Gold Key tells the student Rule 12(h)(2) is the explicit textual carve-out that preserves 12(b)(6) for any later stage.