Maryland preliminary motions: four defenses are waived the moment you file an answer

Maryland does not use the familiar list of seven defenses. Rule 2-322 splits them into two groups, and the split decides whether you must move before answering or may simply plead the defense.

Get that wrong and there is no recovery. The rule says so in one sentence.

Thirty days, sixty if you were served out of state

Md. Rule 2-321(a):

General rule. A party shall file an answer to an original complaint, counterclaim, cross-claim, or third-party claim within 30 days after being served, except as provided by sections (b) and (c) of this Rule.

(b) Exceptions.

(1) A defendant who is served with an original pleading outside of the State but within the United States shall file an answer within 60 days after being served. (2) A defendant who is served with an original pleading by publication or posting, pursuant to Rule 2-122, shall file an answer within the time specified in the notice.

The four mandatory defenses

Md. Rule 2-322(a):

Mandatory. The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process. If not so made and the answer is filed, these defenses are waived.

That last sentence is the whole rule in miniature. Filing the answer waives them. There is no amendment route, no "as a matter of course" repair, and no preserving them by pleading them in the answer — the answer is the event that destroys them.

This is stricter than the federal rule, where a defense of this kind survives if it is included in the answer. In Maryland, if an answer is required, these four are motion-only.

The five permissive defenses

Rule 2-322(b):

Permissive. The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failure to state a claim upon which relief can be granted, (3) failure to join a party under Rule 2-211, (4) discharge in bankruptcy, and (5) governmental immunity. If not so made, these defenses and objections may be made in the answer, or in any other appropriate manner after answer is filed.

Two of these are unusual as Rule 12-style grounds. Discharge in bankruptcy and governmental immunity are affirmative defenses in most states; Maryland lets either one be raised as a preliminary motion.

And under Rule 2-323(a), the answer must contain "the defenses permitted by Rule 2-322 (b) that have not been raised by motion." So a permissive defense you did not move on has to go in the answer.

Losing the motion means losing the case, unless the court says otherwise

Rule 2-322(c):

Disposition. A motion under sections (a) and (b) of this Rule shall be determined before trial, except that a court may defer the determination of the defense of failure to state a claim upon which relief can be granted until the trial. In disposing of the motion, the court may dismiss the action or grant such lesser or different relief as may be appropriate. If the court orders dismissal, an amended complaint may be filed only if the court expressly grants leave to amend. The amended complaint shall be filed within 30 days after entry of the order or within such other time as the court may fix. If leave to amend is granted and the plaintiff fails to file an amended complaint within the time prescribed, the court, on motion, may enter an order dismissing the action.

This is the provision plaintiffs need to read. In many states a dismissal is presumed to be without prejudice and amendment follows as a matter of course. In Maryland, "an amended complaint may be filed only if the court expressly grants leave to amend" — and if leave is granted, the amended complaint is due within 30 days of entry of the order.

Miss that window and the court "may enter an order dismissing the action" on motion.

Note also the deferral rule: preliminary motions "shall be determined before trial", with a single exception — failure to state a claim, which the court may hold over.

Conversion

The end of 2-322(c):

If, on a motion 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 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.

Only failure to state a claim converts, and it converts into a Rule 2-501 motion. See Maryland summary judgment for the standard and the timing that then apply.

Consolidation

Rule 2-322(f):

Consolidation of defenses in motion. A party who makes a motion under this Rule may join with it any other motions then available to the party. No defense or objection raised pursuant to this Rule is waived by being joined with one or more other such defenses or objections in a motion under this Rule. If a party makes a motion under this Rule but omits any defense or objection then available to the party that this Rule permits to be raised by motion, the party shall not thereafter make a motion based on the defenses or objections so omitted except as provided in Rule 2-324.

Joining costs nothing; omitting costs the later motion.

What the answer itself must carry

Maryland's answer rule is more prescriptive than most, and two parts of it decide cases.

Rule 2-323(f) — negative defenses:

Negative defenses. Whether proceeding under section (c) or section (d) of this Rule, when a party desires to raise an issue as to (1) the legal existence of a party, including a partnership or a corporation, (2) the capacity of a party to sue or be sued, (3) the authority of a party to sue or be sued in a representative capacity, (4) the averment of the execution of a written instrument, or (5) the averment of the ownership of a motor vehicle, the party shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. If not raised by negative averment, these matters are admitted for the purpose of the pending action.

Five matters are admitted unless you raise them by negative averment with supporting particulars. In a debt case, item (4) — the execution of a written instrument — is the one that matters most.

Rule 2-323(g) — affirmative defenses. The rule enumerates twenty that must be "set forth by separate defenses":

(1) accord and satisfaction, (2) merger of a claim by arbitration into an award, (3) assumption of risk, (4) collateral estoppel as a defense to a claim, (5) contributory negligence, (6) duress, (7) estoppel, (8) fraud, (9) illegality, (10) laches, (11) payment, (12) release, (13) res judicata, (14) statute of frauds, (15) statute of limitations, (16) ultra vires, (17) usury, (18) waiver, (19) privilege, and (20) total or partial charitable immunity.

Maryland is one of the few states that retains contributory negligence (5), and the list also includes usury (17) and charitable immunity (20).

For the limitations defense in a debt case specifically, see the limitations defense.

The general denial shortcut

Rule 2-323(d):

General denials in specified causes. When the action in any count is for breach of contract, debt, or tort and the claim for relief is for money only, a party may answer that count by a general denial of liability.

For a contract, debt or tort claim seeking money only, Maryland permits a general denial — a genuine simplification over the paragraph-by-paragraph answer most states require. It does not excuse the negative averments under (f) or the affirmative defenses under (g), which still have to be pleaded.

Two things filed with the answer

Rule 2-323(h) requires a defendant's information report with the answer in four situations — including where the defendant disagrees with the plaintiff's report or with the assigned case-management track, or expects to file a counterclaim. Failure to file it lets the court assign the case to any track without your input.

And Rule 2-323(b) provides the preliminary-determination route: subject-matter jurisdiction, failure to state a claim, Rule 2-211 joinder and governmental immunity "shall be determined before trial on application of any party", with the same carve-out for failure to state a claim.

How Maryland compares

A short checklist

1. Diarise 30 days — or 60 if you were served outside Maryland but inside the United States.
2. Sort your defenses into (a) and (b) first. That single question decides whether you must move before answering.
3. Never file the answer while a mandatory defense is live. Filing it waives all four.
4. Put permissive defenses you did not move on into the answer — Rule 2-323(a) requires it.
5. Consider bankruptcy discharge and governmental immunity as preliminary motions, not just as affirmative defenses.
6. If you are dismissed, ask for leave to amend expressly and file within 30 days of the order.
7. Check the five negative averments under 2-323(f) — they are admitted if you stay silent.
8. Plead the affirmative defenses separately. There are twenty enumerated, including contributory negligence.
9. File the information report with the answer if any of the four triggers applies.

Where these rules live

• Md. Rule 2-321 — Time for filing answer
• Md. Rule 2-322 — Preliminary motions
• Md. Rule 2-323 — Answer
• Md. Rule 2-341 — Amendment of pleadings
• Md. Rule 2-501 — Summary judgment

This page explains what the rules say. It isn't legal advice, and the standard for dismissal for failure to state a claim is developed in case law this site doesn't cover.