Michael E. Rosman (Center for Individual Rights) has posted Affirmative Defenses and Rule 12(B)(6): A Plain Meaning Approach (New York Law Journal, December 2012) on SSRN. Here is the abstract:
- This article contends that the courts have mistakenly permitted defendants to assert affirmative defenses in pre-answer motions pursuant to Rule 12(b)(6). A straightforward reading of the Federal Rules of Civil Procedure demonstrates that the rules do not contemplate such motions.
