The North Carolina motion to dismiss: an extension of time waives nothing

North Carolina's Rule 12 follows the familiar pattern, with one sentence most states leave out and several defendants would benefit from knowing: getting more time to answer does not cost you any defense.

That removes the dilemma at the front of every case — whether asking for an extension is itself an appearance that concedes something. In North Carolina it is not.

Thirty days, then twenty

N.C. R. Civ. P. 12(a)(1):

When Presented. A defendant shall serve his answer within 30 days after service of the summons and complaint upon him. A party served with a pleading stating a crossclaim against him shall serve an answer thereto within 30 days after service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within 30 days after service of the answer or, if a reply is ordered by the court, within 30 days after service of the order, unless the order otherwise directs. Service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:

a. The responsive pleading shall be served within 20 days after notice of the court's action in ruling on the motion or postponing its disposition until the trial on the merits; b. If the court grants a motion for a more definite statement, the responsive pleading shall be served within 20 days after service of the more definite statement.

Note that (a) covers a postponement as well as a ruling. If the judge defers the motion to trial, the 20 days still runs — you do not get to wait.

If the case came back from federal court

Rule 12(a)(2) handles remand, which most state rules leave to the federal side:

If it shall be finally determined in the United States courts that the action or proceeding was not removable or was improperly removed, or for other reason should be remanded, and a final order is entered remanding the action or proceeding to the State court, the defendant or defendants, or any other party who would have been permitted or required to file a pleading had the proceedings to remove not been instituted, shall have 30 days after the filing in such State court of a certified copy of the order of remand to file motions and to answer or otherwise plead.

30 days from the filing of the certified copy of the remand order — and the rule gives that time "to file motions and to answer or otherwise plead," so the Rule 12 route reopens on remand.

The seven defenses

Rule 12(b):

How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, 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 or division, (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 necessary party.

Two North Carolina wrinkles in the list. Ground (3) covers "improper venue or division", and ground (7) is failure to join a necessary party — a different word from the federal "required" and Ohio's cross-reference to Rule 19.

The sentence worth knowing

Immediately after the list:

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The consequences of failure to make such a motion shall be as provided in sections (g) and (h). No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. Obtaining an extension of time within which to answer or otherwise plead shall not constitute a waiver of any defense herein set forth.

Four operative sentences:

• Move before you plead if a further pleading is permitted.
• Sections (g) and (h) set the consequences of not moving.
• Joining defenses waives nothing.
• An extension of time waives nothing.

That last one is the practical gift. Several states leave a defendant guessing whether asking for more time is a general appearance that gives up a jurisdictional objection. North Carolina answers it in the rule.

What you lose by leaving it out

Rule 12(g):

Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in section (h)(2) hereof on any of the grounds there stated.

Consolidation is phrased as permission — "may join" — but the second sentence makes it effectively compulsory. File one Rule 12 motion and leave something out, and you may not raise it by motion later.

Rule 12(h)(1) names the four that are actually waived:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (i) if omitted from a motion in the circumstances described in section (g), or (ii) 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.

Rule 12(h)(2) preserves the second group for "any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits."

And 12(h)(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

The tail of 12(b):

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 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.

Only ground (6) converts. Rule 12(c) carries the same rule for judgment on the pleadings, which is available "After the pleadings are closed but within such time as not to delay the trial."

If a motion converts, North Carolina summary judgment governs what happens next.

Forcing an early ruling — or not

Rule 12(d):

Preliminary hearings. The defenses specifically enumerated (1) through (7) in section (b) of this rule, whether made in a pleading or by motion, and the motion for judgment on the pleadings mentioned in section (c) of this rule shall be heard and determined before trial on application of any party, unless the judge orders that the hearing and determination thereof be deferred until the trial.

Any party may apply, and a defense pleaded in the answer qualifies as well as one raised by motion. But North Carolina keeps the deferral clause — "unless the judge orders" the question held over — so the pre-trial ruling is not guaranteed.

The clean-up motions

Rule 12(e) requires a movant seeking a more definite statement to "point out the defects complained of and the details desired", and gives the pleader 20 days to obey a granted order before the pleading may be stricken.

Rule 12(f) allows a motion to strike "any insufficient defense or any redundant, irrelevant, immaterial, impertinent, or scandalous matter" — within 30 days of service where no responsive pleading is permitted, or on the judge's own initiative at any time.

North Carolina's list under (f) includes "irrelevant", which several states' versions omit.

If a certificate is required

A medical malpractice complaint in North Carolina must carry a Rule 9(j) certification, and its absence is a dismissal ground in its own right rather than a Rule 12(b)(6) problem. See the Rule 9(j) certification.

How North Carolina compares

A short checklist

1. Diarise 30 days from service.
2. Ask for an extension if you need one. The rule says in terms that it waives no defense.
3. Move before you plead. Answering first closes the motion route.
4. Put every ground in the one motion. Anything omitted cannot be raised by motion later.
5. Plan for 20 days to answer after the ruling — including if the judge defers the motion to trial.
6. Expect only ground (6) to convert on outside material.
7. Use 12(d) to apply for a pre-trial ruling, but expect the judge may defer it.
8. If the case was remanded from federal court, you have 30 days from the filing of the certified remand order to move or plead.

Where these rules live

• N.C. R. Civ. P. 8 — General rules of pleadings
• N.C. R. Civ. P. 12 — Defenses and objections
• N.C. R. Civ. P. 15 — Amended and supplemental pleadings
• N.C. R. Civ. P. 56 — Summary judgment

This page explains what the rules say. It isn't legal advice, and the standard for dismissal under Rule 12(b)(6) is developed in case law this site doesn't cover.