Is it permissible to file a subesquent
Motion to Dismiss premised on an
already denied Affirmative Defense
such as MTD For Failure ot State a
Claim for Which relief Can be
2 Answers from Attorneys
Re: Pleadings FRCP
A Motion to Dismiss for Failure to State a Claim for Which Relief Can Be Granted is not a one-time motion, although this type of motion is usually attempted on the pleadings in the earliest stages of the case.
What is "one time" about any motion is when the judge has already ruled on the motion on the facts presented. You can't just resubmit the same motion again and again.
At early stages, this forces a plaintiff either to amend the Complaint or to give up a claim. At later stages, if granted, it will end litigation on that claim.
So, yes, the motion can be renewed, if the facts change to demonstrate that such relief has become appropriate.
The best bet, though, is not to file such a motion until you have all the facts (or lack of facts) needed to support it. There's a lot of case law in this area, because it's the first attempt defense counsel usually make to knock out claims.
Re: Pleadings FRCP
In Nevada, the better pleading would be to file a Motion for Summary Judgment alleging that the facts are not in dispute and that the Defendant is entitled to a judgment without a trial.
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