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I Object! A Blog on Preservation of Error

December 2016


December 15, 2016 10:04 AM | Posted by Chris Freeman and Meredith Caiafa | Permalink

Federal Rule 12(g)(2) generally prohibits a successive motion to dismiss based on grounds that were known at the time of the original motion. This rule was tested in VNB Realty, Inc. v. U.S. Bank Nat’l Assoc., No. 2:13-4743, 2015 WL 8490948 (D. N.J. Dec. 10, 2015). There, at the time defendant U.S. Bank filed a motion to dismiss, the Second Circuit was considering an issue of first impression that could have potentially provided an additional basis for dismissing the plaintiff’s complaint. Rather than fully briefing that argument in its motion, U.S. Bank informed the court of the situation and stated that it was expressly preserving the argument pending the Second Circuit’s decision.

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December 6, 2016 8:53 AM | Posted by Jorge A. Perez Santiago | Permalink

The case of Mid-S. Iron Workers Welfare Plan v. Harmon, 645 F. App’x 661 (10th Cir. 2016), teaches a valuable, if oft-repeated reminder: undeveloped arguments in the lower court may not be considered on appeal.

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