If the motion to dismiss is denied, the defendant must still file their answer, usually within a shortened amount of time. That is the efficient method to dispose of all the threshold jurisdictional motions. P. 4.01, the Court of Appeals agreed. R. Civ. Has George waived the venue defense? 12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc. (E.D.Tenn. 1945) 8 Fed.Rules Serv. Motions to dismiss are governed by Federal Rule of Civil Procedure 12 (b), and generally include dismissal on the following grounds: 12 (b) (1) - Lack of Subject Matter Jurisdiction While Fed. P. 7(a). Failure of defendant to assert one or more of these defenses in one of the preceding manners results in waiver of the defense(s). A motion to quash is the proper pleading to test the validity of a service of summons and complaint upon an entity that is not by its true or fictitious name made a party to an action. A motion to dismiss is a formal request for a court to dismiss a case. Data Journalism 101 - Michael J. Berens - Las Vegas NewsTrain - Oct. 10-11, Roger Seawright vs M.Shanken Communications, Shifting Tides - The Temporary Nature of Bankruptcy Court Jurisdiction, Legal Research & Fed. On Day 4, prior to his answer, George filed a motion raising the defenses of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient service of process, and failure to state a claim upon which relief can be granted. Instead of answering within that 20-day period, defendant may choose to make a preliminary Rule 12(b) motion to dismiss. (Deering, 1937) 434; 2 Minn.Stat. In one case, United States v. Metropolitan Life Ins. The question has arisen whether an omitted defense which cannot be made the basis of a second motion may nevertheless be pleaded in the answer. 2. Compare [former] Equity Rules 20 (Further and Particular Statement in Pleading May Be Required) and 21 (Scandal and Impertinence); English Rules Under the Judicature Act (The Annual Practice, 1937) O. Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th Cir. 553 (2000); see also State v. Stone, 323 N.C. 447, 452 (1988) ("Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of Rule 12(h)(1)(A) provides that a defense of lack of personal jurisdiction is waived by omitting it from a motion in the circumstances described in Rule 12(g)(2). Rule 12(g)(2) provides a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Since a personal jurisdiction defense was available, and a Rule 12(f) motion is a motion under this rule [Rule 12], the defense of personal jurisdiction was waived. Co. (W.D.Mo. Stay up-to-date with how the law affects your life. Slusher v. Jones (E.D.Ky. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. In a diversity case, the motion to dismiss for lack of subject-matter jurisdiction can turn on whether a party acquired citizenship by moving to a new state, a matter that requires a finding of fact about the partys actions and intent. 176 (E.D.Tenn. Motion to dismiss a complaint for insufficient service of process under Rule 12 (b) (5) of the Federal Rules of Civil Procedure is the topic of this document. (1937) Rules 109111. Compare Rules of the District Court of the United States for the District of Columbia (1937), Equity Rule 11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. EDP's purported advertising and marketing of process service to debt collectors suggest that EDP targets at least some of its service of legal process to assist debt . This cookie is set by GDPR Cookie Consent plugin. P. 12(h)(1) are waived if omitted from a preliminary motion to dismiss made under this rule. These four waivable defenses are lack of personal jurisdiction [Fed. P. 12(i). (ECF No. P. 12(b). Whether you're thinking about filing a lawsuit or you've had a lawsuit filed against you, the best course of action is to get in touch with a local litigation attorney to learn about all of your options going forward. 4. Description - Motion To Dismiss For Insufficient Service Of Process. If the plaintiff fails to obtain proper service upon the defendant, the lawsuit must be dismissed due to the court's lack of jurisdiction. Q1. 147). Other states provided that a defendant who proceeded to defend on the merits waived the jurisdictional objection. Do the seven defenses in Rule 12(b) all involve matters that can be determined by the court on the face of the pleadings, without the necessity for testimony or findings of fact? Motion to Dismiss for Insufficient Process and Service of Process Defendants move to dismiss arguing Plaintiff has not properly served the Defendants, as Plaintiff has not served the U.S. Attorney's Office or the Attorney General. The sole purpose of allowing such motions seems to be to encourage parties to mind their formalities. 2002). The motion to dismiss must be filed with the court and served on the other party. Realty Corp. v. Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning (C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L. Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238. R. Civ. Sample complaint for rescission of contract in California. See Stevens v. Sec. GAP Report. P. 6(b), 7, 11, 12, and 15(a). 168; Best Foods, Inc. v. General Mills, Inc. (D.Del. Fed. P. 12(b)(5) for Insufficient Service of Process. Note to Subdivision (a). For example, if neither party has an issue with venue where the case was filed, the court may still dismiss the case for improper venue. State v. Salters, 137 N.C. App. Q7(b). Yes. B. P. 12(b)(5) - insufficient service of process, R. Civ. . In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. Has George waived the defense of the statute of limitations? Is there a need to decide the seven defenses before the rest of the lawsuit because they raise especially important issues? When a defendant has a defense of improper venue or lack of jurisdiction, the court should rule on that defense before the parties develop the merits of the case, which may later be dismissed because it was brought in the wrong court. Has George waived his subject matter jurisdiction defense? Under group (1) are: Boro Hall Corp. v. General Motors Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. By accepting, you agree to the updated privacy policy. FRCP Rule 41 The defense of improper venue has been waived by the provisions of Rule 12(h)(1)(A). FRCP68 contains the guidelines for a settlement offer. FRCP41(b) allows for an involuntary dismissal to be filed by the defendant. References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. Doc. (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. 132. Since this exercise concerns waiver of defenses, we will work from back to front in this rule. :&}Dhhnq+@# 10t|OY3}PBpU\2(f3qZ$JdSoCu~fEq(NF#p{mYRf(>6*_4. R. Civ. We also use third-party cookies that help us analyze and understand how you use this website. 12e.231, Case 6; Pedersen v. Standard Accident Ins. These changes are intended to be stylistic only. keys to navigate, use enter to select, Stay up-to-date with how the law affects your life. A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. Rule 11. 204 0 obj <>stream The parties have 1950); Neset v. Christensen, 92 F.Supp. Insufficient service of process means that the summons was not properly served. Rule 12(h)(1)(A) provides for waiver of a venue defense omitted from a Rule 12 motion in circumstances in which Rule 12 requires joinder. Notes of Advisory Committee on Rules1993 Amendment. This exercise explores one type of response to a complaint: a preliminary motion to dismiss under Federal Rule of Civil Procedure 12. Lawsuits have several procedural rules that plaintiffs and defendants must both follow. 1941) 4 Fed.Rules Serv. Q1(a). If it's granted, the case can be dismissed "without prejudice" or "with prejudice." 1470, No. In federal proceedings, a motion to dismiss the case is proper when the court lacks subject matter or personal jurisdiction, when venue is improper, when process (the summons) or service of process is insufficient, when the complaint fails to state a claim upon which relief can be granted, or when a necessary party has These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. Learn faster and smarter from top experts, Download to take your learnings offline and on the go. We've encountered a problem, please try again. If you enjoy this tell others about it. 19, 1948; Jan. 21, 1963, eff. The defenses can be consolidated in the motion. P. 43(c), the trial court could base factual findings on affidavits submitted by the parties, but would have the discretion to hear oral testimony or require depositions. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. We discuss the assertionand possible waiverof the seven grounds found in Federal Rule 12(b) for dismissal of a complaint. The questions in the written exercise and the computer-assisted lesson examine these rules and statutes, consider the reasons for special treatment of Rule 12 defenses, and analyze the waiver provisions of the rule. Contact a qualified attorney to help you with preparing for and dealing with going to court. 669 (1940) 2 Fed.Rules Serv. 8a.25, Case 4; Bowles v. Lawrence (D.Mass. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. Others, like those chal-lenging personal jurisdiction, service of process, or venue, may result only in the plaintiff bring-ing suit again in another forum. Compare [former] Equity Rule 33 (Testing Sufficiency of Defense); N.Y.R.C.P. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. No. 134; Urquhart v. American-La France Foamite Corp. (App.D.C. ), Notes of Advisory Committee on Rules1937. (i) Hearing Before Trial. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. 231, 1518; Kansas Gen.Stat.Ann. It has led to confusion, duplication and delay.) The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. We do not explore the requirements of, or drafting, an answer, which is the responsive pleading to the complaint. R. Civ. To serve the United States, a party must serve: (1) the U.S. Attorney's Office by In ruling on a motion to dismiss, the trial judge may consider circumstantial as well as direct evidence. Doing so allows a movant (defendant) to determine the exact facts relied upon by the process server, in order to confront those facts head on. The federal subject matter jurisdiction defense is considered to be particularly consequential, since erroneous assertion of federal jurisdiction would be usurpation of state power. Fed. %PDF-1.5 % (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Rule 12(b)(5) allows a defendant motion to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure sold by the author With respect to preparations for trial, the party is properly relegated to the various methods of examination and discovery provided in the rules for that purpose. Note to Subdivision (h). No. Yes. All forms provided by US Legal Forms, the nations leading legal forms . 25, r.r. The other party then has the opportunity to respond to the motion, usually within a couple of weeks. Notes of Advisory Committee on Rules1966 Amendment, Subdivision (b)(7). REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss for Insufficient Service of Process filed by MAYER SHIRAZIPOUR, GABRIELLE SHIRAZIPOUR, 44 Second MOTION to Dismiss for Failure of Service of Process filed by MAYER SHIRA ZIPOUR, GABRIELLE SHIRAZIPOUR, 27 MOTION to Strike 22 Answer to Complaint, Counterclaim,, Motion to Strike Entity Defendants' P. 12(a)(1)(A(ii)]. A motion to dismiss can be filed by either party in a case at any time during the proceedings, but it's usually filed by a defendant at the beginning of a lawsuit. Thus if the defendant moves before answer to dismiss the complaint for failure to state a claim, he is barred from making a further motion presenting the defense of improper venue, if that defense was available to him when he made his original motion. This site uses cookies to store information on your computer. This cookie is set by GDPR Cookie Consent plugin. A defendant could also consent, or waive objection, to personal jurisdiction more subtly. 96 0 obj <>stream The cookie is used to store the user consent for the cookies in the category "Performance". No. Reasons for dismissal vary. (Michie, 1928) 9479; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. No. Pretrial motions can resolve many important questions about your lawsuit. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Click Accept to continue using the site with recommended settings, or choose Decline to disable optional cookies. The plaintiff, for example, can raise the defenses in response to a counterclaim. Option two is to raise any and all of these defenses in a preliminary motion, one made before the answer is pleaded. (4) Effect of a Motion. 1945) 5 F.R.D. The Ninth Circuit Court of Appeals has stated that, if the plaintiff is unable to satisfy its burden You will need your rulebook with these rules and statutes for both the following written exercise and CALI CIV 09. A defendant is required to serve an answer on plaintiff within 20 days after being served with the summons and complaint. Fed. Under Fed. Co. v. Edward Katzinger Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc. (C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. (1942) 317 U.S. 686; Boro Hall Corp. v. General Motors Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. Compare [former] Equity Rule 29 (DefensesHow Presented); U.S.C., Title 28, [former] 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). R. Civ. No problem. Subdivision (d). R. Civ. 1945) 9 Fed.Rules Serv. 338; Commentary, Modes of Attacking Insufficient Defenses in the Answer (1939) 1 Fed.Rules Serv. 1940); cf. Note to Subdivisions (e) and (f). Sally filed and served a summons and complaint, and a set of interrogatories, on George on Day 1. 1944) 3 F.R.D. On July 16, 2012, Ms. Tung filed a Motion to Dismiss pursuant to Rule 2-322(a), alleging insufficiency of process and service. 936. We've updated our privacy policy. See 6 Tenn.Code Ann. R. Civ. 196 0 obj <>/Filter/FlateDecode/ID[<84BBEC874A696F44B0FEDD0446DF474F><29EC5CA5322BA84EB40AC9C26284A221>]/Index[183 22]/Info 182 0 R/Length 72/Prev 22263/Root 184 0 R/Size 205/Type/XRef/W[1 2 1]>>stream Note to Subdivision (g). On Day 10, George made a Rule 26(c) motion for a protective order, claiming that the interrogatories were burdensome and vexatious. 1944) 8 Fed.Rules Serv. . Do not sell or share my personal information, 1. No. Motion to Dismiss - 2 - 3. (Return to text), [v] Fed. I. (1937) 283. Subdivision (g) has forbidden a defendant who makes a preanswer motion under this rule from making a further motion presenting any defense or objection which was available to him at the time he made the first motion and which he could have included, but did not in fact include therein. Q6. 643; Brown v. H. L. Green Co. (S.D.N.Y. See, e.g., Rule 5 of the Federal Rules of Civil Procedure. 4. Yes. P. 12(b)(6)] and failure to join a person required by Rule 19(b) [Fed. 1943) 7 Fed.Rules Serv. The words or to prepare for trialeliminated by the proposed amendmenthave sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. What is the difference between these two? For the reasons discussed below, the Court will quash Plaintiff's service on the Defendant, deny Defendant's Motion to Dismiss for lack of service of process, deny as moot Defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted, and direct that the Rule 12(b) provides a party may assert the following defenses by motion. The defendant has two options: 1) raise the defenses in a preliminary motion, or 2) raise the defenses in the answer, provided that they have not been waived by omission from a preliminary motion. Name They may all be consolidated in the answer, along with admissions, denials, and affirmative defenses. [i]Actually, defendant is not the only party who can raise these defenses. In Fla. R. Civ. Q1(c). Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251. Rule 12(a)(3)(B) is added to complement the addition of Rule 4(i)(2)(B). She contended that the Firm, on June 19, 2012, delivered to her an incomplete copy of its complaint (the Non-Confidential Complaint), and that she had yet to be served with a complete copy of the complaint (the Confidential See Rule 12(h)(1)(A). However, the judge dismissed the motion stating that the argument over the date of the alleged assault was a disputed issue for trial and could not be decided on the motion. Subdivision (a). That motion was granted. (1937) Rules 111 and 112. R. Civ. This cookie is set by GDPR Cookie Consent plugin. [Former] Equity Rule 29 (DefensesHow Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing at the discretion of the court. Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. 1942) 6 Fed.Rules Serv. (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. On the other hand, in many cases the district courts have permitted the introduction of such material. 1391(a) [venue] and 1404(a) [transfer of venue]. Sample meet and confer declaration for motion to strike in California, Sample motion to vacate default under Rule 55(c) in United States District Court. 568; United States v. Palmer (S.D.N.Y. 11 (N.D.Ill. Defendant appeared in the court for the sole purpose of challenging personal jurisdiction, and no other purpose. The estimated completion time for this computer-assisted exercise is one hour; it can be done in more than one sitting. Do the seven defenses involve matters that can be severed for separate determination because they do not go to the merits of the lawsuit? Q2. 1946); Elbinger v. Precision Metal Workers Corp., 18 F.R.D. On the other hand, the clause might be read as adding nothing of substance to the preceding words; in that event it appeared that a defense was not waived by reason of being omitted from the motion and might be set up in the answer. (Return to text), [iii] While the rule refers to lack of jurisdiction over the person, this is understood to include all bases of personal jurisdiction, including in personam, in rem, and quasi in rem jurisdiction. The change in title conforms with the companion provision in subdivision (h). Computer-Aided Exercises in Civil Procedure by Center for Computer-Assisted Legal Instruction is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted. Over 97% of federal lawsuits are dismissed, most of which are due to settlements. We determined that Stursberg had not properly served Defendants . The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading. 1941) 42 F.Supp. Q8. 12e.231, Case 1 (. R. Civ. Service is timely waived if the waiver is returned within the time specified in the request (30 days after the request was mailed, or 60 days if mailed out of the country) and before being formally served with process. 1941) 38 F.Supp. Center for Computer-Assisted Legal Instruction, Computer-Aided Exercises in Civil Procedure, Next: Exercise Six Joinder and Supplemental Jurisdiction, Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License. [See Exercise Two, part I.A]. 2000). endstream endobj startxref P. 15(a)(1)(B) gives defendant 20 days after serving the answer on the plaintiff to amend the answer as a matter of course. Has George waived his personal jurisdiction defense? R. Civ. Amended subdivision (g) is to the same effect. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. On Day 15, George filed an answer responding to the allegations in Sallys complaint and raising the defense of improper venue. Yes. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or. If the case is in federal court, you can check the federal rules of civil or criminal procedure to learn more. 1. This can be seen in some older decisions that refer to defendant having appeared specially.. Aug. 1, 1987; Apr. For example, a defendant made a general appearance by such actions as opposing plaintiffs motion to amend the complaint, engaging in discovery, challenging the legal sufficiency of the complaint, or possibly even informing the court that it chose not to appear. Motion to dismiss a complaint for insufficient service of process under Rule 12(b)(5) of the Federal Rules of Civil Procedure is the topic of this document. 275; Braden v. Callaway (E.D.Tenn. 72 (S.D.N.Y. Settlement Reasons for dismissal vary. If the ruling is on some incidental question . Some of the defenses are trivial, and some are highly important. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. [A defendant waiving service is allowed a response time of 60 days (90 days if defendant was addressed outside any federal judicial district). Insofar as any statutes not excepted in Rule 81 provide a different time for a defendant to defend, such statutes are modified. Q7. [v] . Subject matter jurisdiction is granted by constitution and statutes, not by action of the parties. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (3) Lack of Subject-Matter Jurisdiction. P. 12(g)(1). The change here was made necessary because of the addition of defense (7) in subdivision (b). This is a Court Sample and NOT a blank form. Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. Fed. 1945) 8 Fed.Rules Serv. R. Civ. Q5. plaintiff bears the burden of establishing the validity of service as governed by Rule 4. | Last updated May 11, 2018. Poole v. White (N.D.W.Va. Be sure to take your Federal Rules rulebook with you to the computer. This section contains questions for you to answer to test and strengthen your knowledge of waiver of Rule 12 defenses. Physicians v. Hayhurst, 227 F.3d 1104, 1107 (9th Cir. This is done when the defendant believes a claim in the lawsuit is legally invalid, or there are legitimate grounds for throwing the case out of court. See also the Advisory Committee's Note to amended Rule 4(b). The email address cannot be subscribed. Q1(d). (Mason, 1927) 9252; N.Y.C.P.A. Mar. The Perks of Technology in Communication.pdf, INDT Tokens Pegged to the British Pound Sterling, No public clipboards found for this slide, Enjoy access to millions of presentations, documents, ebooks, audiobooks, magazines, and more. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney. Details: Once the Motion to Quash is filed, Plaintiff has the burden to prove that service was legally sufficient. Note: for those who file a federal claim in the federal courts, there is an independent and distinct "service of process" procedure to follow under federal law. http://www.legaldocspro.net/newsletter.htm. Subdivision (c). Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. 40. [i] . The other Rule 12(b) defenses have nothing to do with the merits of the case, so they are easy to separate and rule on prior to proceeding with the main lawsuit. Notes of Advisory Committee on Rules1987 Amendment. For starters, "The process server must be identified by name and address on the return." See Tenn. R. Civ. When the special appearance was successful, the case was dismissed and defendant went home happy. It's important to be aware that specific reasons for a case dismissal must be in the first document filed with the court, otherwise that issue is considered waived. So, you may wonder, do you have another option? No substantive change is intended. The judge will then review each side's motion, and give the court's decision at a predetermined hearing date. Learn more about FindLaws newsletters, including our terms of use and privacy policy. Accordingly, the reference to the 20 day time limit has also been eliminated, since the purpose of this present provision is to state a time period where the motion for a bill is made for the purpose of preparing for trial.