Last updated March 16, 2008

F.R.C.P. 12(b) Motion

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can.. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here.

FRCP stands for the Federal Rules of Civil Procedure. We mention them in your Set Up procedure. if you haven't downloaded them, do so.

Get real familiar with FRCP 12(b). It can help you when you don't expect it.

In almost every federal jurisdiction, before you file any motion with the court you must first confer with the othr party, or their attorney if they have one, before filing the motion. See yur local rules, usually Rule 7.1 or there about. The purpose of this is to streamline the paperwork and avoid delays. The exceptions to this rule are motions filed under FRCP 12 and FRCP 56.

Under FRCP 12(b), before answering a complaint or before responding to a motion that has been filed you can file a motion for one of seven reasons:

1. Lack of Jurisdiction over Subject Matter - We have discussed jurisdiction earlier.
2. Lack of Jurisdiction over the Person (or company) - We have discussed jurisdiction earlier.
3. Improper Venue - similar to Jusisdiction
4. Insufficiency of Process - we'r really not sure about this one
5. Insufficiency of Service of Process - you didn't properly serve them
6. Failure To State A Claim Upon Which Relief Can Be Granted
7. Failure To Join A Party Under Rule 10