The Delaware motion to dismiss: seven defenses, ten days if you lose, and six deadlines that are not twenty days

Delaware's Rule 12 looks like the federal rule until you reach its lettered subdivisions. Alongside the ordinary twenty days, it carries six separate response deadlines for particular kinds of action — including one for objections to ditch returns that exists nowhere else in American civil procedure.

Get the wrong clock and the motion never gets read.

The seven defenses

Del. Super. Ct. Civ. R. 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.

The defenses are raised by motion "at the option of the pleader" — they may equally be pleaded in the answer. And the motion "shall be made before pleading if a further pleading is permitted", so it comes before the answer, not with it.

The rule adds that "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." Combining does not cost you anything; omitting does.

Twenty days, then ten

Rule 12(a) sets the ordinary clock and what a motion does to it:

A defendant shall serve an answer within 20 days after service of process, complaint and affidavit, if any, upon that defendant, unless the Court directs otherwise when service of process is made pursuant to Rule 4(f)(1)(VI). If a defendant appears before service is made upon that defendant, that defendant shall serve an answer within 20 days after appearance.

(1) If the Court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 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 10 days after the service of the more definite statement.

Ten days after a denial is short, and it runs from notice of the Court's action rather than from a docket entry you have to find.

The deferral limb of (1) is easy to miss. A motion the Court postpones to trial also starts the ten days — the answer is due even though the motion has not been decided.

Before you plan any of this, check the face of the complaint for a Rule 3(b) notation demanding an affidavit of defense. Where one is present the ordinary options narrow, as responding to a Delaware complaint sets out.

The six other clocks

Rule 12 then departs from every other state's version, with separately lettered subdivisions for particular proceedings.

Two are worth reading closely.

Rule 12(aa2) covers objections to ditch returns, and adds an evidentiary requirement:

Objections to ditch returns; when presented. Objections to ditch returns shall be filed within 10 days after the filing of the return and supported by affidavit, where the objections are based upon facts not appearing from the record.

Ten days, and an affidavit wherever the objection depends on anything outside the record.

Rule 12(aa4) is the only deadline in the rule that can run from something other than service:

When presented in appeals under Rule 3(c). When appellant is the party having the duty of filing the complaint or other first pleading in an appeal under Rule 3(c), the appellee shall serve appellee's pleading within 20 days after service of process on appeal, or if the appellee has not been served, within 40 days after date of process.

An appellee who is never served still has a deadline — 40 days from the date of process. Waiting to be served is not a strategy here.

Losing a defense by leaving it out

Rule 12(g) consolidates, and 12(h)(1) enforces:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Four defenses are lost by silence — personal jurisdiction, venue, insufficiency of process, and insufficiency of service. Each disappears if left out of a motion you did make, or if never raised at all.

Rule 12(h)(2) preserves three for much longer: failure to state a claim, failure to join a party indispensable under Rule 19, and failure to state a legal defense may be raised "in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits."

Subject matter jurisdiction is in neither list, because Rule 12(h)(3) treats it differently again: "Whenever it appears by suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action." It cannot be waived, and the Court must act on it however it surfaces.

When a motion to dismiss becomes summary judgment

Rule 12(b) closes with the conversion clause:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleadings 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.

Two conditions: matters outside the pleading are presented, and the Court does not exclude them. Then the motion becomes a Rule 56 motion and everyone gets a reasonable opportunity to put in Rule 56 material.

Rule 12(c) carries the identical clause for a motion for judgment on the pleadings, available "After the pleadings are closed but within such time as not to delay the trial."

Conversion matters more in Delaware than in most states, because of what Rule 56 does with cross motions. See Delaware summary judgment.

Two motions people forget

Rule 12(e) — more definite statement. Available where a pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading", and it must "point out the defects complained of and the details desired." If the order is not obeyed within 10 days, the Court may strike the pleading.

Rule 12(f) — motion to strike. Before responding, or where no responsive pleading is permitted within 20 days of service, or on the Court's own initiative at any time. It reaches "any insufficient defense or any redundant, immaterial, impertinent or scandalous matter."

Rule 12(d) entitles any party to have the enumerated defenses and a Rule 12(c) motion "heard and determined before trial", unless the Court defers them.

How Delaware compares

A short checklist

1. Check the face of the complaint for a Rule 3(b) notation before deciding how to respond at all.
2. Confirm which clock applies. Certiorari, ditch returns, mechanics' liens, Rule 3(c) appeals, attachment and capias each have their own.
3. Raise every available Rule 12 defense in the first motion. Four are waived by omission.
4. Diary 10 days from notice of a denial — and from a deferral to trial, which also starts it.
5. Decide whether to attach exhibits. Doing so on a 12(b)(6) motion risks conversion to Rule 56.
6. Move to strike within 20 days where no responsive pleading is permitted.
7. Ask for a preliminary determination under 12(d) if you want the defense decided before trial.

Where these rules live

• Del. Super. Ct. Civ. R. 12 — Defenses and objections
• Del. Super. Ct. Civ. R. 56 — Summary judgment
• Del. Super. Ct. Civ. R. 55 — Default judgments
• Del. Super. Ct. Civ. R. 3 — Commencement of action

This page explains what the rules say. It isn't legal advice.