The Indiana motion to dismiss: eight grounds, and one free amendment if you lose

Indiana's Trial Rule 12 is the federal rule with two additions that matter in practice.

There are eight enumerated defenses rather than seven. And a plaintiff who loses a motion to dismiss for failure to state a claim gets ten days to amend once as of right — a second chance the federal rule does not build in.

Both cut against the assumption that a granted motion to dismiss ends the case.

Ten days, whichever way it goes

Ind. Trial Rule 12(A):

When presented. The time allowed for the presentation of defenses and objections in a motion or responsive pleading is computed as set forth in this rule. Filing a motion permitted under this rule alters the time for filing a responsive pleading as follows, unless a different time is fixed by the court:

(1) if the court does not grant the motion, the responsive pleading must be filed within ten days of the order; (2) if the court grants the motion and corrective action is permitted, an amended pleading taking the corrective action must be filed within ten days of the order, and the responsive pleading must be filed within ten days thereafter.

Ten days is short in both directions. For the answer period that starts the case, see responding to an Indiana complaint.

Eight defenses

Rule 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, must be asserted in the responsive pleading thereto if one is required; except that at the option of the pleader, the following defenses may be made by motion:

(1) Lack of jurisdiction over the subject matter; (2) Lack of jurisdiction over the person; (3) Incorrect venue under Rule 75, or any statutory provision. The disposition of this motion must be consistent with Rule 75; (4) Insufficiency of process; (5) Insufficiency of service of process; (6) Failure to state a claim upon which relief can be granted, which must include failure to name the real party in interest under Rule 17; (7) Failure to join a party needed for just adjudication under Rule 19; (8) The same action pending in another state court of this state.

Three of these are drafted differently from the federal model:

(3) Incorrect venue points to Rule 75 and says the disposition "must be consistent with Rule 75" — which in Indiana usually means transfer to a county of preferred venue rather than dismissal.

(6) expressly includes real-party-in-interest. Elsewhere that is a separate objection; here the rule folds it into failure to state a claim, and says it "must include" it.

(8) has no federal counterpart. A parallel action already pending in another Indiana state court is its own dismissal ground.

The twenty-day trap

The timing sentence after the list has two halves, and the second one catches people:

A motion making any of these defenses must be made before pleading if a further pleading is permitted or within twenty days after service of the prior pleading if none is required. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, any of the defenses in (B)(2), (3), (4), (5) or (8) is waived to the extent constitutionally permissible unless made in a motion within twenty days after service of the prior pleading.

Where no responsive pleading is required, five defenses — personal jurisdiction, venue, process, service and the pending-action ground — must be raised by motion within twenty days or they are gone. There is no answer to put them in.

Then the usual reassurance: "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

The free amendment

This is the sentence worth knowing if you are the plaintiff:

When a motion to dismiss is sustained for failure to state a claim under (B)(6), the pleading may be amended once as of right pursuant to Rule 15(A) within ten days after service of notice of the court's order sustaining the motion and thereafter with permission of the court pursuant to such rule.

A (B)(6) dismissal is not the end. The pleading may be amended once as of right within ten days after service of notice of the order — and after that with the court's permission under Rule 15(A).

Note what triggers the ten days: service of notice of the order, not the date the judge signed it.

Conversion

If, on a motion asserting the defense numbered (6) to dismiss for failure 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 must be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties must be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Only (6) converts under 12(B). Rule 12(C) carries the same conversion for judgment on the pleadings, available "After the pleadings are closed but within such time as not to delay the trial."

If yours converts, Indiana summary judgment governs the deadlines and the evidence.

Consolidation and waiver

Rule 12(G):

Consolidation of defenses in motion. Any motions or defenses under this rule may be consolidated in one motion. If a party makes a motion under this rule but omits any available defense or objection which this rule permits to be raised by motion, no motion based on the omitted defense or objection is permitted except as allowed under (H)(2).

Rule 12(H)(1) names the five that are lost:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or the same action pending in another state court of this state is waived to the extent constitutionally permissible:

(a) if omitted from a motion in the circumstances described in subdivision (G),

The qualifier "to the extent constitutionally permissible" is Indiana's own, and it recognizes that some objections cannot be waived by a rule of procedure whatever the rule says.

Getting it decided before trial

Rule 12(D):

Preliminary determination. Whether made in a pleading or by motion, the defenses specifically enumerated (1) to (8) in subdivision (B) of this rule, and the motion for judgment on the pleadings mentioned in subdivision (C) of this rule shall, upon application of any party or by order of court, be determined before trial unless substantial justice requires the court to defer hearing until trial.

Two routes in: a party's application, or the court's own order. And the deferral standard is higher than most states' — not simple discretion but "unless substantial justice requires" it.

The clean-up motions

Rule 12(E) requires the motion to "include all defects complained of and the details desired", and gives the non-movant ten days to file a corrective pleading. If the motion is denied, the responsive pleading is due within ten days under (A)(1).

Rule 12(F) allows striking "any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter" — on motion before responding, within twenty days where no response is permitted, or at any time on the court's own initiative.

If the deadline has already passed

Indiana's post-judgment vehicle is distinctive: the motion to correct error under Trial Rule 59, which has its own thirty-day clock and is often a prerequisite to appeal. See the Indiana motion to correct error.

How Indiana compares

A short checklist

1. Move before you plead — or within twenty days where no responsive pleading is required.
2. Check the eight grounds, not seven. A parallel Indiana action and real-party-in-interest are both in the list.
3. Put everything in one motion. Five defenses are waived if omitted.
4. If you are raising venue, read Rule 75 first — the disposition must be consistent with it, and that usually means transfer.
5. Diarise ten days after any order — for the responsive pleading, the amendment, or the corrective pleading.
6. If your claim is dismissed under (B)(6), amend within ten days of service of notice. That amendment is as of right.
7. Apply under 12(D) for a pre-trial determination; the court needs "substantial justice" to defer.

Where these rules live

• Ind. Trial Rule 8 — General rules of pleading
• Ind. Trial Rule 12 — Defenses and objections
• Ind. Trial Rule 15 — Amended and supplemental pleadings
• Ind. Trial Rule 56 — Summary judgment

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