Federal Pleading

Stewart Edelstein
Just because you can assert a defense does not mean that you should.

Just because you can assert a defense does not mean that you should.


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Your client has just been sued in federal court. How do you avoid inadvertently waiving available defenses?

Determine What Defenses Are Available

Does the plaintiff have standing? What about the subject matter and in personam jurisdiction? Was the service made properly? Is the venue proper? Do you have a basis for remand? Does the complaint fail to state a claim upon which relief can be granted as to any count? Does the plaintiff join all necessary parties?

Determine the Deadline to File Each Defense

You can raise a Rule 12(b)(2-5) defense only before filing an answer or as a special defense with your answer. Those defenses pertain to lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. You can raise Rule 12(b)(6) and (7) defenses even at trial. They pertain to failure to state a claim and failure to join a necessary party. You can raise a lack of subject matter jurisdiction at any time. But why wait? Generally, see Rules 12(b), (g)(2), and (h) for waiver of Rule 12 defenses.

Determine Whether to Assert Defenses

Just because you can assert a defense does not mean that you should. For example, if there is a technical defect in the process or service of process that is easily remedied, and you have no statute of limitations defenses, why cause your client to incur the expense of pleading practice? In general, before asserting any defense, consider the likelihood of success, the expense to the client, and the consequences if you are successful—and if you are not—on your case and on settlement negotiations. If you decide not to assert an available defense, you must obtain the client’s informed consent, which you should confirm in writing.

Determine What Local Rules Apply

Before filing any defense motion, be aware of the local rules in the federal district court in which the case is pending, and the chambers practices of the judge to whom your case has been assigned. Many federal district court judges require a pre-hearing conference and the judge’s consent before filing such motions, to avoid needless motion practice.


Stewart Edelstein

Stewart Edelstein taught clinical courses at Yale Law School for 20 years, during his 40-year career as a commercial trial lawyer. He is the author of more than 50 articles and podcasts for trial lawyers and the book How to Succeed as a Trial Lawyer, now in its second edition.