The Alabama motion to dismiss: thirty days to answer, ten if the motion fails

Alabama's Rule 12 follows the federal pattern closely, with one difference that catches people repeatedly: the answer period is a generous thirty days, but the period after a denied motion is only ten.

That asymmetry is the single most useful thing to know before deciding whether to move or answer.

Thirty days, then ten

Ala. R. Civ. P. 12(a):

When presented. A defendant shall serve an answer within thirty (30) days after the service of the summons and complaint upon that defendant except when service is made by publication and a different time is prescribed under the applicable procedure. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within thirty (30) days after the service upon that party. The plaintiff shall serve a reply to a counterclaim in the answer within thirty (30) days after service of the answer or, if a reply is ordered by the court, within thirty (30) days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods to time as follows, unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within ten (10) days after the service of the more definite statement. Proceedings to modify, cite for contempt, or similar motions in divorce proceedings shall not be considered as original pleadings within the meaning of this rule.

Ten days is short. A defendant whose motion is denied on a Friday has very little room, and the answer still has to plead every affirmative defense.

Service by publication is carved out and runs on its own period.

The seven defenses

Ala. R. Civ. P. 12(b):

How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

Seven grounds, matching the federal list — and unlike Colorado, Minnesota and Wisconsin, Alabama keeps improper venue inside Rule 12.

Two operative sentences follow the list. "Before pleading" if a further pleading is permitted — answer first and the motion route closes. And joining waives nothing, so there is no reason to file separately.

Conversion

The end of 12(b):

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Only ground (6) converts. Rule 12(c) applies the same conversion to judgment on the pleadings, available "After the pleadings are closed but within such time as not to delay the trial."

You can insist on an early ruling

Ala. R. Civ. P. 12(d):

Preliminary hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

"Shall be heard and determined before trial on application of any party" — so a defense pleaded in the answer can still be brought on for decision, which is the route for a defendant who answered within the thirty days rather than moving.

The more definite statement

Ala. R. Civ. P. 12(e):

Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten (10) days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Note the obligation on the movant — point out the defects and the details desired — and the sanction on the other side: a pleading not amended within ten days of the order may be stricken.

If you have already defaulted

Alabama's set-aside deadlines are among the shortest in the country, and they differ by court:

• Circuit court: 30 days
• District court: 14 days
• District court eviction and unlawful detainer: 7 calendar days

And an entry of default — as opposed to a default judgment — can be set aside any time before judgment. See setting aside an Alabama default, which also notes that in district court a motion to dismiss counts as an appearance and prevents default in the first place.

That last point connects directly to this page: filing a Rule 12 motion in district court is not only a way to attack the complaint, it is a way to avoid being defaulted while you do it.

How Alabama compares

A short checklist

1. Diarise 30 days from service — and check whether service was by publication, which runs differently.
2. Decide before you plead. A Rule 12 motion must come before the answer if a further pleading is permitted.
3. Put every ground in one motion. Joining waives nothing.
4. Include venue. Alabama keeps it inside Rule 12, unlike several neighboring states.
5. Plan for ten days. If the motion is denied, that is all you get to answer — draft the answer while the motion is pending.
6. Expect only ground (6) to convert to summary judgment on outside material.
7. Use 12(d) to force an early ruling on a defense raised in the answer.
8. In district court, remember a motion to dismiss counts as an appearance and prevents a default.
9. If you have already been defaulted, check which court you are in — 30, 14 or 7 days.

Where these rules live

• Ala. R. Civ. P. 12 — Defenses and Objections
• Ala. R. Civ. P. 19 — Joinder of Persons Needed for Just Adjudication
• Ala. R. Civ. P. 55 — Default
• Ala. R. Civ. P. 56 — Summary Judgment
• Ala. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and the standard for dismissal under Rule 12(b)(6) is developed in case law this site doesn't cover.