The Missouri motion to dismiss: eleven grounds, and you may answer at the same time

Missouri's Rule 55.27 does two things almost no other state's version does.

It enumerates eleven defenses rather than the usual six or seven. And it says in terms that a motion and a responsive pleading may be filed at the same time without waiving what is in either one.

That second sentence removes the dilemma most defendants face everywhere else — move, or answer, but not both.

Thirty days, and the motion cannot cost you any of them

Mo. R. Civ. P. 55.25(a):

Answer—When Filed. A defendant shall file an answer within thirty days after the service of the summons and petition, except where service by mail is had, in which event a defendant shall file an answer within thirty days after the acknowledgment of receipt of summons and petition or return registered or certified mail receipt is filed in the case or within forty-five days after the first publication of notice if neither personal service nor service by mail is had.

Rule 55.25(c) then handles the effect of a motion, and its last sentence is the one to remember:

Effect of Filing Motions on Time to Plead. The filing of any motion provided for in Rule 55.27 alters the time fixed for filing any required responsive pleadings as follows, unless a different time is fixed by order of the court: If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten days after notice of the court's action; if the court grants a motion for a more definite statement the responsive pleading shall be filed within ten days after the filing of the more definite statement. In either case the time for filing of the responsive pleading shall be no less than remains of the time which would have been allowed under this Rule if the motion had not been made.

Ten days after notice — but "no less than remains of the time which would have been allowed" if you had never moved. So a defendant who files a motion on day 3 and loses it on day 8 still has the balance of the original thirty days, not ten.

Filing early therefore costs nothing. In most states it can cost you three weeks.

Eleven defenses

Rule 55.27(a):

How Presented. Every defense, in law or fact, to a claim 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) That plaintiff does not have legal capacity to sue, (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 52.04, (8) That plaintiff should furnish security for costs, (9) That there is another action pending between the same parties for the same cause in this state, (10) That several claims have been improperly united, (11) That the counterclaim or cross-claim is one which cannot be properly interposed in this action.

Five of these have no federal counterpart:

• (3) legal capacity to sue — elsewhere a negative averment or affirmative defense
• (8) security for costs — a request rather than a dismissal ground, but it travels in the same motion
• (9) another action pending between the same parties for the same cause in this state
• (10) claims improperly united
• (11) an improper counterclaim or cross-claim

Note what is not in the list: improper venue. Missouri handles venue outside Rule 55.27.

Motion and answer together

The timing provision, and then the sentence that distinguishes Missouri:

A motion making any of these defenses shall be made:

(A) Within the time allowed for responding to the opposing party's pleading, or (B) If no responsive pleading is permitted, within thirty days after the service of the last pleading. Motions and pleadings may be filed simultaneously without waiver of the matters contained in either. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

Two points there.

First, the motion is due "within the time allowed for responding" — the same thirty days, not some earlier "before pleading" moment. Missouri does not require you to choose between moving and answering on a timeline.

Second, "Motions and pleadings may be filed simultaneously without waiver of the matters contained in either." You can file the motion and the answer on the same day and lose nothing.

For most defendants that is the safest course: the answer protects the deadline, the motion preserves the argument, and neither undercuts the other.

Eight defenses you can still lose

Rule 55.27(f) requires consolidation:

Consolidation of Defenses in Motion. A party who makes a motion under this Rule 55.27 may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this Rule 55.27 but omits therefrom any defense or objection then available that this Rule 55.27 permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 55.27(g)(2) on any of the grounds there stated.

And Rule 55.27(g)(1) lists what waiver reaches — eight items, the longest such list in the country:

A defense of:

(A) Lack of jurisdiction over the person, (B) Insufficiency of process, (C) Insufficiency of service of process, (D) That plaintiff should furnish security for costs, (E) That plaintiff does not have legal capacity to sue, (F) That there is another action pending between the same parties for the same cause in this state, (G) That several claims have been improperly united, or (H) That the counterclaim or cross-claim is one which cannot be properly interposed in this action, is waived if it is:

(a) Omitted from a motion in the circumstances described in Rule 55.27(f), or (b) Neither made by motion under this Rule 55.27 nor included in a responsive pleading.

Note limb (b): these are preserved by either a motion or the responsive pleading. Because Missouri lets you file both together, a defendant who puts all eight in the answer has protected them regardless of what the motion says.

Rule 55.27(g)(2) preserves the second group — failure to state a claim, failure to join a party indispensable under Rule 52.04, and failure to state a legal defense — which "may be made in any pleading permitted or ordered under Rule 55.01 or by motion for judgment on the pleadings."

Read that list carefully: it does not include "at the trial on the merits", which most states' versions do. Missouri closes the door earlier.

Rule 55.27(g)(3): "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."

Conversion — into Rule 74.04

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings 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 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

Missouri's summary judgment rule is 74.04, not 56, and it is one of the most prescriptive in the country — a movant must set out each material fact in separately numbered paragraphs with specific references to the supporting record, and the respondent must admit or deny each one.

That makes conversion a bigger event in Missouri than elsewhere. A motion that converts lands the parties in a rule with strict formatting requirements neither side prepared for.

Rule 55.27(b) 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."

A pre-trial ruling

Rule 55.27(c):

Preliminary Hearings. The defenses specifically enumerated (1)-(11) in subdivision (a) of this Rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (b) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

All eleven, whether raised by motion or pleaded — on any party's application, subject to the court's power to defer.

The clean-up motions

Rule 55.27(d) allows a more definite statement where a pleading "is not averred with sufficient definiteness or particularity", with ten days to obey a granted order.

Rule 55.27(e) allows striking "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" — on motion before responding, within thirty days where no responsive pleading is permitted, or on the court's own initiative at any time.

Related Missouri deadlines

For the answer itself and what it must contain, see responding to a Missouri petition. For the clocks that start once the case is joined, see Missouri discovery deadlines.

How Missouri compares

A short checklist

1. Diarise 30 days — or 45 from first publication where neither personal nor mail service was had.
2. Consider filing the motion and the answer together. Rule 55.27 permits it and waives nothing.
3. Work through all eleven grounds, not the federal seven. Capacity, a parallel Missouri action and misjoined claims are all in the list.
4. Do not look for venue here. It is not a Rule 55.27 ground.
5. Put the eight waivable defenses somewhere — the motion or the answer. Omitting them from both loses them.
6. Remember the floor. A denied motion never leaves you with less time than the original thirty days would have.
7. Think before attaching documents. Conversion moves you into Rule 74.04's numbered-paragraph regime.
8. Raise failure to state a claim early enough. Missouri's preserved list stops at judgment on the pleadings and does not extend to trial.

Where these rules live

• Mo. R. Civ. P. 55.05 — Claims for Relief
• Mo. R. Civ. P. 55.25 — Time for Filing Answer
• Mo. R. Civ. P. 55.27 — Defenses and Objections
• Mo. R. Civ. P. 55.33 — Amended and Supplemental Pleadings
• Mo. R. Civ. P. 74.04 — Summary Judgment

This page explains what the rules say. It isn't legal advice, and the standard for dismissal under Rule 55.27(a)(6) is developed in case law this site doesn't cover.