Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 9: Procedural Defenses Short of Trial
Jonathan L. Rubin1 Introduction Defendants in civil antitrust lawsuits brought in the US federal courts have several opportunities short of a trial on the merits by which to dispose of claims against them. This chapter concerns three categories of defenses: i) challenges to the court’s subject matter jurisdiction, ii) defenses available by pre-answer motion, and iii) pretrial summary proceedings and affirmative defenses. The chapter that follows after this one deals with discovery issues under the Federal Rules of Civil Procedure. Rule 12 of the Federal Rules of Civil Procedure2 gives defendants 20 days after being legally notified of the suit filed against them (the ‘service of process’3) within which to serve the plaintiffs with a ‘responsive pleading’ answering the allegations in the complaint. The responsive pleading also must allege affirmative defenses the defendant intends to raise. The time to respond to a complaint may be extended to 60 days (or 90 days for defendants not found in any US judicial district) if the defendant acknowledges notice of the suit and waives objections to the form or manner of service of process.4 In practice, however, a responsive pleading is only rarely filed within the initial time limits that run from the time of service of process. Defendants more often opt to toll the time to respond through the use of Rule 12(b), which permits a defendant to interpose a pre-answer motion to dismiss raising the defenses enumerated in Rules 12(b)(1)–(7). The list is non-exhaustive. Generally speaking, Rule...
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