McLaughlin v. Curtis Pub. Co.

BRIGHT, District Judge.

Plaintiff’s motion to strike out the first, third and fourth defenses is denied. Even if plaintiff had not withdrawn so much of his motion as relates to the first defense, I still think it is entirely unnecessary to plead such a defense that the complaint fails to state a claim upon which relief can be granted. Defendants say that they believe it is necessary to set it out in their answer because of Rule 12(b) (g) (h), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, contending that if not pleaded, it is waived. The failure of a complaint to state a…