The Utah motion to dismiss: a partial motion leaves you on two clocks at once

Utah's Rule 12 follows the federal pattern, with one sentence that catches out defendants who move against part of a complaint rather than all of it:

but a motion directed to fewer than all of the claims in a pleading does not affect the time for responding to the remaining claims

File a motion attacking three of five claims, and the answer to the other two is still due on the original date. The motion stops nothing.

Most states treat a Rule 12 motion as suspending the whole answer period. Utah does not.

The deadlines

Utah R. Civ. P. 12(a)(1):

Unless otherwise provided by statute or order of the court, a defendant must file and serve an answer within 21 days after the service of the summons and complaint within the state and within 30 days after service of the summons and complaint outside the state. A party served with a cross-claim must file and serve an answer to the crossclaim within 21 days after service. The plaintiff must file and serve an answer to a counterclaim within 21 days after service of the counterclaim, unless the court orders otherwise. The service of a motion under this rule alters these periods of time as follows, unless a different time is ordered by the court, but a motion directed to fewer than all of the claims in a pleading does not affect the time for responding to the remaining claims:

(A) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading must be served within 14 days after notice of the court's action; (B) If the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the service of the more definite statement.

The out-of-state period is worth noting — 30 days rather than 21, keyed to where service occurred rather than where the defendant resides.

Rule 12(a)(2) maps the terminology for domestic relations actions under Rule 26.1: "the terms 'plaintiff' means petitioner, the term 'defendant' means respondent, the term 'complaint' means petition, and the term 'counterclaim' means counterpetition."

The seven defenses

Rule 12(b):

How presented. Every defense, in law or fact, to claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, must 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 an indispensable party. A motion making any of these defenses must be made before pleading if a further pleading is permitted.

Seven grounds on the federal model, with improper venue retained inside the rule and ground (7) phrased as failure to join an indispensable party.

Then the timing rule: the motion "must be made before pleading if a further pleading is permitted."

Two protections most rules leave out

The rest of 12(b) contains a clause worth noticing:

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion or by further pleading after the denial of such motion or objection.

Joining waives nothing — that is standard. But Utah adds "or by further pleading after the denial of such motion or objection", which several states leave to inference.

Rule 12(i) says it again, on its own:

Pleading after denial of a motion. The filing of a responsive pleading after the denial of any motion made pursuant to these rules must not be deemed a waiver of such motion.

So answering after your motion is denied does not abandon the point. Given the 14-day post-denial deadline, that certainty matters.

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 must be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties must be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Only ground (6) converts under 12(b). Rule 12(c) 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."

Conversion is a real event in Utah, because Rule 56 requires a structured statement of facts and a verbatim restatement of each disputed fact in response. See Utah summary judgment.

Consolidation and waiver

Rule 12(g):

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

Rule 12(h):

Waiver of defenses. A party waives all defenses and objections not presented either by motion or by answer or reply, 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, 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 must dismiss the action.

Utah's formulation is broad: a party "waives all defenses and objections not presented either by motion or by answer or reply." The answer is a full substitute for the motion, so the practical rule is simple — put everything somewhere.

Getting an early ruling

Rule 12(d):

Preliminary hearings. The defenses specifically enumerated (1)-(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 must be heard and determined before trial on application of any party, unless the court orders that the hearings and determination thereof be deferred until the trial.

"Must be heard and determined before trial on application of any party", subject to the court's power to defer — and it reaches a defense raised in the answer, not only one raised by motion.

The clean-up motions

Rule 12(e) requires a motion for a more definite statement to "point out the defects complained of and the details desired", with 14 days to obey a granted order before the pleading may be stricken.

Rule 12(f) allows striking "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter" — on motion before responding, or within 21 days where no responsive pleading is permitted.

Security for costs from an out-of-state plaintiff

Rule 12(j) is unusual enough to be worth knowing:

Security for costs of a nonresident plaintiff. When the plaintiff in an action resides out of this state, or is a foreign corporation, the defendant may file a motion to require the plaintiff to furnish security for costs and charges which may be awarded against such plaintiff. Upon hearing and determination by the court of the reasonable necessity therefor, the court must order the plaintiff to file a $300.00 undertaking with sufficient sureties as security for payment of such costs and charges as may be awarded against such plaintiff. No security must be required of any officer, instrumentality, or agency of the United States.

Where the plaintiff resides out of state or is a foreign corporation, a defendant may move for security for costs. On a finding of reasonable necessity the court must order a $300 undertaking. Officers, instrumentalities and agencies of the United States are exempt.

It is a small sum, but the motion is available and belongs in the same filing as your other Rule 12 motions under 12(g).

If you have not answered yet

See responding to a Utah complaint for what the answer must contain. If a default has already been entered, note that Utah's relief window is among the shortest in the country — see setting aside a Utah default judgment.

How Utah compares

A short checklist

1. Check where you were served. In state is 21 days; outside Utah is 30.
2. Decide whether your motion covers every claim. If it does not, the answer to the rest is still due on the original date.
3. Move before you plead if a further pleading is permitted.
4. Put every available ground in one motion — or in the answer. Anything in neither is waived.
5. Include venue. Utah keeps it inside Rule 12.
6. Answer after a denial without worrying. Rule 12(i) says it is not a waiver.
7. Plan for 14 days after a denial or a deferral.
8. Think before attaching documents. Conversion moves you into Rule 56's verbatim-restatement regime.
9. If the plaintiff is out of state or a foreign corporation, consider Rule 12(j) and join it with your other motions.

Where these rules live

• Utah R. Civ. P. 8 — General rules of pleading
• Utah R. Civ. P. 12 — Defenses and objections
• Utah R. Civ. P. 15 — Amended and supplemental pleadings
• Utah 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.