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Old 11-03-2009, 06:40 PM   #87 (permalink)
Colette Meiji
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Quote:
Originally Posted by Trout Recreant View Post
The only thing you are absolutely required to do is plead the most basic elements of the case in the complaint. I almost never do this, and I draft a LOT of Complaints. Also, I answer a lot of them and I try extremely hard not to admit anything other than what I have to, or what benefits my clients. For example, most complaints start with a jurisdiction and venue section. Jurisdiction is appropriate in this court, and venue in this location because... I usually want to admit that unless it's some venue on the other side of the mountains or something. Might as well keep it close to home where I'm used to the procedures and don't have to charge my clients to drive all over the place.

As for the substantive pleadings, those are almost always denied to whatever extent possible. If we don't know, then we must deny until we do know, so you get phrases like "The Defendants do not have sufficient basis to either admit or deny, therefore the Defendants deny the allegations in Paragraph X of the Plaintiff's Complaint" If you don't do that, you have admitted it.

Don't get to tied up in what the Answer says. It sounds like an important document, but in reality it isn't too important.

Also, with regards to 12(b)(6). Rule 12(b)(6) allows for the dismissal of a Complaint for failure to state a claim upon which relief may be granted. It has nothing to do with the merits of the case. Every claim has elements. If you fail to claim one in your complaint, they can bring a 12(b)(6) motion. What happens is either the judge orders you to amend your complaint to state a claim, or dismisses with leave to refile. It's a delay tactic, not a game-ender.

Here's an example:

1) Blady had a duty to me to act with reasonable care
2) Blady breached her duty by not acting with reasonable care and she ran me over with her car
3) Blady's breach of her duty caused me significant damage
4) The damage caused by Blady's breach of the duty is broken bones, tire tread marks, fear of streets and loss of respect for the automaking industry ( )

There. Duty, breach, causation and damage. The elements of a negligence claim. That complaint would not be thrown out on a 12(b)(6) motion, although it would need to be much more fleshed out than that. The facts of the case, such as, I have never even met Blady, she never ran me over with a car, caused me harm, nor do I have no damages since nothing happened, are not at play. A CR11 motion is more likely, along with some fraudulent filing charges, potential perjury charges, etc... but 12(b)(6) is not an issue.

You're talking about an interpretation of fairly technical rules. LL may not even have waived it's right to bring a 12(b)(6) motion. I doubt it will, though, as it would be a waste of time. Don't read into that any admission on LL's part that there is merit to the claim. Note also that I am not commenting on whether there is merit to the claim. I'm just stating that the lack of a 12(b)(6) motion means nothing here.
Dang Trout, Blady ran you over?!!!!

Doesn't she know your wife knows how to use a gun?
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