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1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted. 2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a) that the defendant is a corporation organized under the laws of Delaware and was not and is not subject to service of process within the Southern District of New York, and (b) that the defendant has not been properly served with process in this action, all of which more clearly appears in the affidavits of M. N. and X. Y. hereto annexed as Exhibit A and Exhibit B respectively. 3. To dismiss the action on the ground that it is in the wrong district because (a) the jurisdiction of this court is invoked solely on the ground that the action arises under the Constitution and laws of the United States and (b) the defendant is a corporation incorporated under the laws of the State of Delaware and is not licensed to do or doing business in the Southern District of New York, all of which more clearly appears in the affidavits of K. L. and V. W. hereto annexed as Exhibits C and D, respectively. 4. To dismiss the action on the ground that the court lacks jurisdiction because the amount actually in controversy is less than ten thousand dollars exclusive of interest and costs. Signed: ______________ Attorney for Defendant. Address: _____________ Notice of Motion To: ______________ Attorney for Plaintiff. ________________ Please take notice, that the undersigned will bring the above motion on for hearing before this Court at Room __, United States Court House, Foley Square, City of New York, on the ___ day of____, 193_, at 10 o'clock in the forenoon of that day or as soon thereafter as counsel can be heard. Signed: ______________ Attorney for Defendant. Address: _____________ (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961.) EXPLANATORY NOTES 1. The above motion and notice of motion may be combined and denominated Notice of Motion. See Rule 7(b). 2. As to paragraph 3, see U.S.C., Title 28, § 1391 (Venue generally), subsections (b) and (c). 3. As to paragraph 4, see U.S.C., Title 28, § 1331 (Federal question; amount in controversy; costs), as amended by P.L. 85-554, 72 Stat. 415, July 25, 1958, requiring that the amount in controversy, exclusive of interest and costs, be in excess of $10,000. (As amended Dec. 29, 1948, eff. Oct. 20, 1949; Apr. 17, 1961, eff. July 19, 1961.) NOTES OF ADVISORY COMMITTEE ON RULES--1948 AMENDMENT The change in nomenclature conforms to the official designation of a district court and of a court of appeals in Title 28, U.S.C., § 43(a), 132(a); and the more appropriate reference to "United States Court House, Foley Square, City of New York" in Form 19 replaces the outmoded reference. Form 20. Answer Presenting Defenses Under Rule 12(b) First Defense The complaint fails to state a claim against defendant upon which relief can be granted. Second Defense If defendant is indebted to plaintiffs for the goods mentioned in the complaint, he is indebted to them jointly with G. H. G. H. is alive; is a citizen of the State of New York and a resident of this district, is subject to the jurisdiction of this court, as to both service of process and venue; can be made a party without depriving this court of jurisdiction of the present parties, and has not been made a party. Third Defense Defendant admits the allegation contained in paragraphs 1 and 4 of the complaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and every other allegation contained in the complaint. Fourth Defense The right of action set forth in the complaint did not accrue within six years next before the commencement of this action. Counterclaim (Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in a complaint. No statement of the grounds on which the court's jurisdiction depends need be made unless the counterclaim requires independent grounds of jurisdiction.) Cross-Claim Against Defendant M. N. (Here set forth the claim constituting a cross-claim against defendant M. N. in the manner in which a claim is pleaded in a complaint. The statement of grounds upon which the court's jurisdiction depends need not be made unless the cross-claim requires independent grounds of jurisdiction.) NOTE The above form contains examples of certain defenses provided for in Rule 12(b). The first defense challenges the legal sufficiency of the complaint. It is a substitute for a general demurrer or a motion to dismiss. The second defense embodies the old plea in abatement; the decision thereon, however, may well provide under Rules 19 and 21 for the citing in of the party rather than an abatement of the action. The third defense is an answer on the merits. The fourth defense is one of the affirmative defenses provided for in Rule 8(c). The answer also includes a counterclaim and a cross-claim. NOTES OF ADVISORY COMMITTEE ON RULES--1946 AMENDMENT The explanatory note incorporates revisions made by the Advisory Committee at the same time amendments to certain rules of the Federal Rules of Civil Procedure were made. See also rule 12(b), as amended. Form 21. Answer to Complaint Set Forth in Form 8, With Counterclaim for Interpleader Defense Defendant admits the allegations stated in paragraph 1 of the complaint; and denies the allegations stated in paragraph 2 to the extent set forth in the counterclaim herein. Counterclaim for Interpleader 1. Defendant received the sum of ___ dollars as a deposit from E. F. 2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it which he claims to have received from E. F. 3. E. F. has notified the defendant that he claims such deposit, that the purported assignment is not valid, and that he holds the defendant responsible for the deposit. Wherefore defendant demands: (1) That the court order E. F. to be made a party defendant to respond to the complaint and to this counterclaim.1 (2) That the court order the plaintiff and E. F. to interplead their respective claims. (3) That the court adjudge whether the plaintiff or E. F. is entitled to the sum of money. (4) That the court discharge defendant from all liability in the premises except to the person it shall adjudge entitled to the sum of money. (5) That the court award to the defendant its costs and attorney's fees. 1 Rule 13(h) provides for the court ordering parties to a counterclaim, but who are not parties to the original action, to be brought in as defendants. (As amended Jan. 21, 1963, eff. July 1, 1963.) NOTES OF ADVISORY COMMITTEE ON RULES--1963 AMENDMENT This form was amended in 1963 by deleting the stated dollar amount and substituting a blank, to be properly filled in by the pleader. See Note of Advisory Committee under Form 3. [Form 22. Eliminated Jan. 21, 1963, eff. July 1, 1963] Form 22 for motion to bring in third-party defendant, setting out as an exhibit summons and third-party complaint, and for notice of motion, was eliminated Jan. 21, 1963, eff. July 1, 1963, and superseded by Forms 22-A and 22-B, setting out summons and complaint against third-party defendant, and motion to bring in third-party defendant. See Advisory Committee notes under Forms 22-A and 22-B. Form 22-A. Summons and Complaint Against Third-Party Defendant United States District Court for the Southern District of New York Civil Action, File Number __

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