Responding to a Hawaii complaint: 20 days, 18 days' notice for every motion, and 60 interrogatories coming

Hawaii's Rule 12 follows the federal template closely. The differences that matter sit in the surrounding rules: an unusually long notice period for motions, a time-computation rule that still excludes weekends from short periods, and the largest interrogatory allowance of any jurisdiction on this site.

Twenty days to answer

Haw. R. Civ. P. 12(a)(1): a defendant "shall serve an answer within 20 days after being served with the summons and complaint," except where service is made under Rule 4(c) and a different time is prescribed by court order under a statute or rule of court.

Cross-claims — Rule 12(a)(2): 20 days after being served. Reply to a counterclaim: 20 days after service of the answer, or 20 days after service of a court order requiring a reply.

After a Rule 12 motion — Rule 12(a)(3):

• if the court denies the motion or postpones disposition until trial, the responsive pleading is due within 10 days after notice of the court's action;
• if the court grants a motion for a more definite statement, 10 days after service of the more definite statement.

Counting the 20 days

Rule 6(a) has a provision most systems have abandoned:

In computing any period of time … the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a holiday … When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.

Twenty days is calendar days. But the short periods scattered through the rules — the three days' notice before a default judgment hearing, the three days for a summary judgment reply — are counted excluding weekends and holidays, which makes them longer than they look.

"Holiday" means any day so designated under section 8-1 of the Hawaii Revised Statutes, which includes several days particular to Hawaii.

Enlargement — Rule 6(b): the court may, for cause shown, enlarge a period on request made before it expires, with or without motion or notice; or, on motion after expiration, permit the act where the failure was the result of excusable neglect.

But not for everything. Rule 6(b) expressly bars the court from extending time for action under Rules 50(b), 52(b), 59(b), (d) and (e), and 60(b), and under Rule 4(a) of the Hawaii Rules of Appellate Procedure, except as those rules themselves allow.

Those are the post-judgment and appellate deadlines. They cannot be enlarged by agreement or on a showing of excusable neglect.

Eighteen days' notice for a motion

Rule 6(d):

A written motion, other than one that may be heard ex parte, and notice of the hearing thereof, shall be served not less than 18 days before the date fixed for the hearing, unless a different period is fixed by these rules or by order of the court.

Eighteen days against the federal rule's 14. It applies to every motion, including a Rule 12 motion — so a motion to dismiss served on the last of your 20 days will be heard well over two weeks later.

The court may fix a different period, and "such an order may for cause shown be made on ex parte application."

The seven defenses

Rule 12(b) mirrors the federal list. Every defense goes in the responsive pleading, except that seven "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

The motion "shall be made before pleading if a further pleading is permitted," and "no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

Conversion: matters outside the pleading presented on a (6) motion and not excluded turn it into a Rule 56 motion, with a reasonable opportunity for all parties to present pertinent material. In Hawaii that carries a real timing consequence — Rule 56(c) requires 18 days before the hearing for the motion, 8 days for the opposition and 3 days for the reply, and Rule 56(a) and (b) impose a 50-day before trial deadline. The guide on Hawaii summary judgment covers those.

Waiver

Rule 12(g): a party making a Rule 12 motion may join any other motion the rule provides that is then available. Omit an available defense and "the party shall not thereafter make a motion based on the defense or objection so omitted," except one preserved by Rule 12(h)(2).

Rule 12(h)(1): personal jurisdiction, improper venue, insufficiency of process and insufficiency of service are waived if omitted from a motion in the Rule 12(g) circumstances, or if neither made by motion nor included in a responsive pleading or an amendment permitted by Rule 15(a) to be made as a matter of course.

That last route closes when a responsive pleading is served. After that, an amendment requires leave, and leave does not revive a waived defense.

Rule 12(h)(2): failure to state a claim, failure to join an indispensable party, and failure to state a legal defense may be raised in any Rule 7(a) pleading, by motion for judgment on the pleadings, or at the trial on the merits.

Rule 12(h)(3): where it appears "by suggestion of the parties or otherwise" that subject-matter jurisdiction is lacking, the court shall dismiss the action.

The other Rule 12 motions

Judgment on the pleadings — Rule 12(c): after the pleadings are closed, within such time as not to delay trial. The same conversion rule applies.

Preliminary hearings — Rule 12(d): the seven enumerated defenses and a Rule 12(c) motion "shall be heard and determined before trial on application of any party," unless the court defers them to trial.

More definite statement — Rule 12(e): where a pleading is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." The motion points out the defects and the details desired; failure to obey a granted order within 10 days lets the court strike the pleading.

Motion to strike — Rule 12(f): an insufficient defense, or redundant, immaterial, impertinent or scandalous matter, on motion before responding, or within 20 days where no responsive pleading is permitted, or on the court's own initiative at any time.

Default

Hawaii's Rule 55 is close to the federal original.

Entry — Rule 55(a): where a party "has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default."

There is no notice requirement before entry. Alaska requires the application to be served and a seven-day wait; Washington requires five days' notice to a party who has appeared. Hawaii requires neither.

Judgment by the clerk — Rule 55(b)(1): where the claim is for "a sum certain or for a sum which can by computation be made certain," the clerk enters judgment on the plaintiff's request and affidavit of the amount due, provided the defendant was defaulted for failure to appear and is not an infant or incompetent person.

Judgment by the court — Rule 55(b)(2): in all other cases. No judgment against an infant or incompetent person unless represented by a guardian or other representative who has appeared and on whom service may be made under Rule 17.

If the party against whom judgment by default is sought has appeared in the action, the party … shall be served with written notice of the application for judgment at least 3 days prior to the hearing.

Three days — and because it is fewer than seven, Rule 6(a) excludes intermediate weekends and holidays from the count.

Where the court needs to take an account, determine damages, establish the truth of an averment by evidence, or investigate any other matter, it may conduct hearings or order references, "and shall accord a right of trial by jury to the parties when and as required by any statute."

Against the State or a county — Rule 55(e): no default judgment against the State or a county, or an officer or agency of either, "unless the claimant establishes a claim or right to relief by evidence satisfactory to the court."

Setting a default aside

Rule 55(c):

For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

The familiar two-tier structure. Before judgment, good cause. After judgment, the full Rule 60(b) standard — and Rule 6(b) forbids the court from enlarging the time for a Rule 60(b) motion.

The practical lesson is the same everywhere: move before judgment if you possibly can.

What discovery will look like

Worth knowing before you answer, because it shapes the cost of the case.

Interrogatories — Rule 33(a): without leave or written stipulation, a party may serve "not exceeding 60 in number, counting any subparts or subquestions as individual questions."

Sixty is the highest allowance of any jurisdiction on this site — more than double the federal 25 and twice Alaska's 30. The subpart-counting rule is strict, but the ceiling is high.

Time to answer — Rule 33(b)(3): 30 days after service of the interrogatories, "except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant."

Objections — Rule 33(b)(4): all grounds "shall be stated with specificity," and "any ground not stated in a timely objection is waived" unless excused for good cause.

Requests for admission — Rule 36(a): each matter separately set forth, "and the matter is admitted unless, within 30 days after service of the request," the party serves a written answer or objection. Requests may be served on the plaintiff after commencement, and on any other party with or after service of the summons and complaint — but "unless the court shortens the time, a defendant shall not be required to serve answers or objections" before the period the rule sets.

How Hawaii compares

A short checklist

1. Calendar 20 days from service, excluding the day of service.
2. If you are filing a motion, work backwards from 18 days — Rule 6(d) applies to every motion that is not heard ex parte.
3. Consolidate your Rule 12 defenses into one motion. Rule 12(g) forecloses a second one.
4. Do not plan to add a jurisdiction, venue, process or service defense later. Rule 12(h)(1) saves only the as-of-course amendment.
5. Watch for conversion. A declaration attached to a Rule 12(b)(6) motion pulls the motion into Rule 56, with its 50-day-before-trial deadline.
6. If default has been entered but no judgment, move now — good cause is the standard, and Rule 60(b) is a much harder road.
7. Count short periods without weekends. Rule 6(a) excludes them from anything under seven days.
8. Budget for 60 interrogatories — and remember you get 45 days to answer the first set as a defendant.

Where these rules live

• Haw. R. Civ. P. 4 — Process
• Haw. R. Civ. P. 6 — Times
• Haw. R. Civ. P. 8 — General rules of pleading
• Haw. R. Civ. P. 12 — Defenses and objections
• Haw. R. Civ. P. 15 — Amended and supplemental pleadings
• Haw. R. Civ. P. 33 — Interrogatories to parties
• Haw. R. Civ. P. 36 — Requests for admission
• Haw. R. Civ. P. 55 — Default
• Haw. R. Civ. P. 56 — Summary judgment
• Haw. R. Civ. P. 60 — Relief from judgment or order

Circuit court rules add their own requirements on motion practice. This page explains what the rules say. It isn't legal advice.