The Tennessee motion to dismiss: four defenses you cannot rescue by amending

Tennessee's Rule 12 gives a defendant thirty days and eight grounds to work with. It also contains a parenthetical that most states do not have, and it removes a safety net federal practitioners rely on.

Under the federal rule, a defendant who forgets a jurisdiction-or-service defense can still put it in an amendment made as a matter of course. Rule 12.08 forbids that.

Thirty days, then fifteen

Tenn. R. Civ. P. 12.01:

When Presented. A defendant shall serve an answer within thirty (30) days after the service of the summons and complaint upon him. A party served with a pleading stating a cross-claim against such party shall serve an answer thereto within thirty (30) days after the service upon him or her. The plaintiff shall serve a reply to a counterclaim in the answer within thirty (30) days after service of the answer, or, if a reply is ordered by the court, within thirty (30) days after service of the order, unless the order otherwise directs. 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: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within fifteen (15) days after notice of the court's action; (2) if the court grants a motion for a more definite statement the responsive pleading shall be served within fifteen (15) days after the service of the more definite statement.

A deferral to trial starts the 15 days just as a denial does.

Eight defenses

Rule 12.02:

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, 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 in writing: (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, and (8) specific negative averments made pursuant to Rule 9.01.

The eighth is Tennessee's own. Rule 9.01 governs averments about capacity, authority and legal existence, and a specific negative averment made under it may be raised by motion rather than only in the answer.

Note also "by motion in writing" — Tennessee says so expressly where most states leave it implied.

Then the timing sentence: "A motion making any of these defenses shall be made before pleading if a further pleading is permitted." And the usual protection: "No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion."

The parenthetical that costs cases

Rule 12.08:

Waiver of Defenses. A party waives all defenses and objections which the party does not present either by motion as hereinbefore provided, or, if the party has made no motion, in the party's answer or reply, or any amendments thereto, (provided, however, the defenses enumerated in 12.02(2), (3), (4) and (5) shall not be raised by amendment), except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the defense of lack of capacity, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, 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.

Read the parenthetical on its own: "provided, however, the defenses enumerated in 12.02(2), (3), (4) and (5) shall not be raised by amendment."

The federal rule lets a defendant repair the omission with an amendment made as a matter of course. Tennessee does not. You get one shot: the motion, or the answer as first filed.

Note also that Tennessee's preserved list includes lack of capacity, which several states leave out.

One motion, or the rest are gone

Rule 12.07:

Consolidation of Defenses. A party who makes a motion under this rule may join it with the other motions herein provided for and then available to the party. If a party makes a motion under this rule and does not include therein all defenses and objections then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on any of the defenses or objections so omitted, except as provided in 12.08.

Combined with 12.08's parenthetical, this is unusually unforgiving. File a Rule 12 motion raising only insufficiency of service, leave out personal jurisdiction, and personal jurisdiction cannot be raised by a later motion (12.07) or by amendment (12.08).

Conversion

The tail of 12.02:

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 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 12.03 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, on application

Rule 12.04:

Preliminary Hearings. On application of any party, the defenses specifically enumerated (1) through (8) in 12.02, whether made in a pleading or by motion, and the motion for judgment mentioned in 12.03 shall be heard and determined before trial unless the court orders that the hearing and determination thereof be deferred until the trial.

All eight are covered, whether raised by motion or pleaded in the answer — but the court may defer.

The clean-up motions

Rule 12.05 requires the motion for a more definite statement to "point out the defects complained of and the details desired", with fifteen days to obey a granted order before the pleading may be stricken.

Rule 12.06 allows striking "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.

If a default has already been entered

Tennessee's relief route runs on Rules 55.02 and 60.02, and the outer limits differ by ground. See setting aside a Tennessee default judgment.

For the discovery clocks that start once the case is joined, see Tennessee discovery deadlines.

How Tennessee compares

A short checklist

1. Diarise 30 days from service.
2. Decide early and completely. The four service-and-jurisdiction defenses must be in your first motion or your original answer — an amendment will not save them.
3. Put every ground in one motion. Rule 12.07 bars a later motion on anything omitted.
4. Check ground (8) if capacity, authority or legal existence is in issue — Rule 9.01 negative averments are a Rule 12 ground here.
5. Plan for 15 days to answer after a denial or a deferral.
6. Expect only ground (6) to convert on outside material.
7. Apply under 12.04 to get a defense in your answer heard before trial.
8. Remember what survives — failure to state a claim, indispensable party, lack of capacity, and subject-matter jurisdiction.

Where these rules live

• Tenn. R. Civ. P. 8 — General Rules of Pleading
• Tenn. R. Civ. P. 12 — Defenses and Objections
• Tenn. R. Civ. P. 15 — Amended and Supplemental Pleadings
• Tenn. 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 12.02(6) is developed in case law this site doesn't cover.