The Ohio motion to dismiss: twenty-eight days to answer, and one motion to raise everything

Ohio gives a defendant twenty-eight days to answer, which is generous. What it does not give is a second chance to raise a threshold defense you left out of your first motion.

Civ.R. 12(G) is the trap, and it is worded as a command rather than a warning.

Twenty-eight days, then fourteen

Ohio Civ.R. 12(A)(1):

The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him; if service of notice has been made by publication, he shall serve his answer within twenty-eight days after the completion of service by publication.

Filing a Rule 12 motion changes that date. Civ.R. 12(A)(2):

The 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) if the court denies the motion, a responsive pleading, delayed because of service of the motion, shall be served within fourteen days after notice of the court's action; (b) if the court grants a motion, a responsive pleading, delayed because of service of the motion, shall be served within fourteen days after service of the pleading which complies with the court's order.

Note that (b) covers the granted case too — where the court orders a repleading, the clock runs from service of the pleading that complies, not from the order.

The seven defenses

Civ.R. 12(B):

Every defense, in law or fact, to a claim for relief 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) 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 or Rule 19.1.

Ohio keeps improper venue inside the rule, and ground (7) reaches both Rule 19 and Rule 19.1 (the latter covering joinder of claims for property damage and personal injury arising from the same occurrence).

Then the timing sentence: "A motion making any of these defenses shall be made before pleading if a further pleading is permitted." Answer first and the motion route closes.

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

One motion, or you lose what you left out

Civ.R. 12(G):

Consolidation of defenses and objections. A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule.

"Must join" — not may. And the consequence is stated flatly: an omitted defense may not be asserted later "by motion or responsive pleading".

Civ.R. 12(H)(1) identifies which four are lost this way:

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

Civ.R. 12(H)(2) preserves the second group: failure to state a claim, failure to join an indispensable party, and failure to state a legal defense "may be made in 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) puts subject-matter jurisdiction beyond waiver entirely: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction on the subject matter, the court shall dismiss the action."

Conversion, with an Ohio limit

The end of 12(B):

When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.

The "provided however" clause is Ohio's own. Even after conversion, the court may consider only the categories of material Rule 56 enumerates — so a converted motion does not open the door to anything the movant cares to attach.

If the motion converts, the timing and evidence rules of Ohio summary judgment take over.

Civ.R. 12(C) applies the same idea after the pleadings close: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."

You can force an early ruling

Civ.R. 12(D):

The defenses specifically enumerated (1) to (7) in subdivision (B) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (C) of this rule shall be heard and determined before trial on application of any party.

Ohio's version has no deferral clause — several states let the court put the question off until trial, and this one does not. On any party's application the enumerated defenses "shall be heard and determined before trial," including a defense raised in the answer rather than by motion.

The two clean-up motions

Civ.R. 12(E) — the definite statement:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within fourteen days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

The movant must point out the defects and the details desired, and a pleader who ignores a granted order for fourteen days risks having the pleading stricken.

Civ.R. 12(F) — the motion to strike:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty-eight days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent, or scandalous matter.

Note the court's own initiative at any time — the 28-day limit binds the parties, not the judge.

If you have already been defaulted

Ohio's set-aside route runs on Civ.R. 60(B), with a one-year outer limit for the first three grounds and a reasonable-time standard for the rest. See setting aside an Ohio judgment.

If a garnishment has already started, that is a separate and much shorter clock — five business days to request a hearing, the tightest in the country. See stopping an Ohio wage garnishment.

How Ohio compares

A short checklist

1. Diarise 28 days from service — or from completion of publication.
2. Put every available ground in one motion. Civ.R. 12(G) says "must join," and the four service-and-venue defenses are gone if you leave them out.
3. Move before you plead. Answering first closes the motion route.
4. Plan for 14 days to answer if the motion is denied.
5. Decide whether to attach anything. Outside material converts the motion — and only Rule 56 categories count even then.
6. Use 12(D) to force a pre-trial ruling; Ohio gives the court no discretion to defer.
7. Consider 12(E) or 12(F) where the problem is vagueness or scandalous matter rather than a missing element.
8. Remember what never waives — subject-matter jurisdiction, which the court must raise itself.

Where these rules live

• Ohio Civ.R. 8 — General Rules of Pleading
• Ohio Civ.R. 12 — Defenses and Objections
• Ohio Civ.R. 15 — Amended and Supplemental Pleadings
• Ohio Civ.R. 56 — Summary Judgment

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