Plaintiff filed a claim to except from discharge, 523(a)(2)(A) and 523(a)(6). At the non-evidentiary hearing, the Judge dismissed the 523(a)(6); and gave the Plaintiff leave to amend his 523(a)(2)(A) for failure to plead with the required particularity 9(b).
When he re-submits his claim, I want to do another motion to dismiss. Do I have to put every affirmative defense in this motion; or, can I just plead the insufficiency of the claim?
If the judge allows the Plaintiff to proceed, do I then submit my answer to the complaint without losing any of my affirmative defenses?
Thank you.
You can file the Answer at any time as long as it is within the time allowed. you should answer right away and plead all affirmative defenses. in a 12b motion, motion to dismiss for failure to state a claim, the court has allowed the party to replead because they did not state the specific instances and conduct that supports the allegation of fraud. You can wait to answer until after the case is replead or you can move once again under 12b.
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
I hesitate to give any advice in this situation because in my experience the parties are directed with precision both by the court during such hearings, and again in a written order that follows, exactly what the court expects.
Very generally speaking, if the plaintiff is being given a second bite at the apple in filing the complaint, then you generally would have the option to either file the motion to dismiss or file an answer, which would include any and all defenses. You can in fact do both at the same time.
I second the stated opinion that you are playing with fire to do this yourself.
This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.
