Rubin, Jonathan L. --- "Procedural Defenses Short of Trial" [2010] ELECD 749; in Foer, A. Albert; Cuneo, W. Jonathan (eds), "The International Handbook on Private Enforcement of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The International Handbook on Private Enforcement of Competition Law

Editor(s): Foer, A. Albert; Cuneo, W. Jonathan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848448773

Section: Chapter 9

Section Title: Procedural Defenses Short of Trial

Author(s): Rubin, Jonathan L.

Number of pages: 29

Extract:

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 ...