The Arizona motion to dismiss: twenty days, and you must phone the other side first

Two things make Arizona's Rule 12 different from every other state's version of the same rule.

The answer period is twenty days, among the shortest in the country. And a motion to dismiss for failure to state a claim must be accompanied by a certificate that you tried to resolve the issue by talking to the other side — in person or by telephone, not by email.

Miss the second and the motion is defective no matter how good the argument is.

Twenty days, then ten

Ariz. R. Civ. P. 12(a)(1)(A):

A defendant or third-party defendant must file and serve an answer or other responsive pleading:

(i) within 20 days after being served with the summons and complaint, except as otherwise provided in Rules 4.2 (d)(3) and (m); or (ii) if it has timely waived service under Rule 4(f), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant or third-party defendant outside any judicial district of the United States.

And Rule 12(a)(2):

Effect of a motion. Unless the court sets a different time, filing and 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 file and served within 10 days after notice of the court's action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be filed and served within 10 days after the more definite statement is served.

The waiver figures are worth noticing. Waiving service under Rule 4(f) triples the answer period from 20 days to 60 — which is often reason enough to accept a waiver request.

Ten days after a denial is very short. Draft the answer while the motion is pending.

The seven defenses

Rule 12(b):

How to present defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

Arizona restyled its civil rules in 2017, so the language is the plain-English federal style rather than the older "insufficiency of process" phrasing most states still use.

Venue is narrower here than anywhere else

The last sentence of 12(b) is unusual enough to read twice:

A party may assert improper venue as a defense only if the action cannot be or could not have been transferred to the proper county under A.R.S. § 12-404.

In most states improper venue is a straightforward Rule 12 ground. In Arizona it is available only where transfer to the proper county is not and was not possible. Where the case can simply be moved, the venue objection is not a dismissal ground at all — the remedy is transfer.

That single sentence disposes of a large share of would-be venue motions.

The certificate almost everyone forgets

Rule 12(j):

Good faith consultation certificate. A good faith consultation certificate complying with Rule 7.1 (h) must accompany any motion brought under (b)(3), (b)(6), (c), or (f) of this rule.

Four motions need it: improper venue (b)(3), failure to state a claim (b)(6), judgment on the pleadings (c), and motion to strike (f).

And Rule 7.1(h) says what the certificate must show:

When these rules require that a "good faith consultation certificate" accompany a motion or that the parties otherwise consult in good faith, the movant must attach to the motion a separate statement certifying and demonstrating that the movant has tried in good faith to resolve the issue by conferring with-or attempting to confer with-the party or person against whom the motion is directed. The consultation required by this rule must be in person or by telephone, and not merely by letter or email.

Three requirements, each of which trips someone:

• It must be a separate statement, not a paragraph inside the motion.
• It must certify and demonstrate the attempt — a bare assertion is not what the rule asks for.
• It must have been in person or by telephone. An exchange of emails does not satisfy it.

The jurisdictional grounds — (b)(1), (b)(2), (b)(4), (b)(5) — do not require the certificate, which makes sense: there is nothing to confer about when the objection is that the court cannot hear the case.

Joining, and what you lose

Rule 12(g):

(1) Right to join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on further motions. Except as provided in Rule 12(h)(2) or (3), a party who 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.

Rule 12(h)(1) identifies what that costs you:

When some are waived. A party waives any defense listed in Rule 12(b)(2) through (5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

Rule 12(h)(3): "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."

Conversion

Rule 12(d):

Result of presenting matters outside the pleadings. If, on a motion under Rule 12(b)(6) or (c), matters outside the pleadings are presented to, and not excluded by, the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Both (b)(6) and (c) convert. If yours does, Arizona summary judgment takes over.

Rule 12(c) has its own timing, and it is not the usual formula: judgment on the pleadings is available "After the pleadings are close—but no later than the date on which dispositive motions must be filed." That ties it to the scheduling order rather than to the trial date.

A pre-trial ruling, if you ask

Rule 12(i):

Preliminary hearings. If a party so moves, any defense listed in Rule 12(b)(1) through (7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

You have to move for it, and the court can still defer. But the route works for a defense raised in the answer, which is what a defendant who used the 20 days to answer rather than to move will need.

The clean-up motions

Rule 12(e) requires the movant to "point out the defects complained of and the details desired", and gives 10 days to obey a granted order before the pleading may be stricken.

Rule 12(f) lets the court strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter", acting "on its own" or on a party's motion — before responding, or within 20 days where no response is allowed.

Both of these are also certificate motions if brought under (f).

If you have already been defaulted

Arizona's default procedure has a distinctive structure and its own clock. See setting aside an Arizona default. And because Arizona front-loads disclosure rather than waiting for discovery requests, see Arizona's mandatory disclosure for what comes due once the case is joined.

How Arizona compares

A short checklist

1. Diarise 20 days from service — Arizona's period is shorter than almost every other state's.
2. If you were sent a waiver request, consider taking it. Waiving service buys 60 days.
3. Call opposing counsel before filing. A (b)(3), (b)(6), (c) or (f) motion needs a good faith consultation certificate, and email does not count.
4. Attach the certificate as a separate statement that demonstrates the attempt.
5. Check A.R.S. § 12-404 before raising venue. If the case can be transferred, venue is not a dismissal ground.
6. Put every ground in one motion. The four jurisdiction-and-service defenses are waived if omitted.
7. Plan for 10 days to answer if the motion is denied or deferred.
8. Move under 12(i) if you want a defense in your answer decided before trial.

Where these rules live

• Ariz. R. Civ. P. 7.1 — Motions in General
• Ariz. R. Civ. P. 8 — General Rules of Pleading
• Ariz. R. Civ. P. 12 — Defenses and Objections
• Ariz. R. Civ. P. 15 — Amended and Supplemental Pleadings
• Ariz. R. Civ. P. 19 — Required Joinder of Parties
• Ariz. R. Civ. P. 56 — Summary Judgment

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.