Rule 12.Defenses and Objections: When and How; Motion for Judgment on the Pleadings; Consolidation and Waiving Defenses; Pretrial Hearing

Rule 12(a) sets the clock for responding to a pleading. A defendant must answer within 21 days of being served with the summons and complaint; a party must answer a counterclaim or crossclaim within 21 days of being served with the pleading that states it; and a reply to an answer is due 21 days after an order to reply, unless that order says otherwise. Filing certain motions resets these deadlines: if the court denies a motion or holds it for trial, the responsive pleading is due 14 days after notice of that ruling, and if the court orders a more definite statement, the response is due 14 days after that statement is served.

Rule 12(b) lists seven defenses a party can raise by motion instead of folding them into a responsive pleading: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and failure to join a required party under Rule 19. The sixth of these — failure to state a claim — functions as North Dakota's motion-to-dismiss provision, the tool most lawyers mean when they talk about a Rule 12 motion. Raising a defense by motion does not waive it, and joining several defenses in one motion doesn't waive any of them either.

Several related motions round out the rule. After the pleadings close, but early enough that it won't delay trial, either side can move for judgment on the pleadings under Rule 12(c). If a party attaches material outside the pleadings to a Rule 12(b)(6) or 12(c) motion and the court doesn't exclude it, the motion converts into one for summary judgment under Rule 56, and both sides must get a real chance to respond to that outside material. A motion for a more definite statement targets a pleading too vague to answer — it must be filed before answering and point to the specific defects, and if the court orders a more definite statement and it isn't provided within 14 days, the court can strike the pleading or issue another appropriate order. A motion to strike reaches an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter, and the court can act on its own or on a timely motion.

Rule 12(g) and (h) police how and when these defenses must be raised. A party generally must consolidate every available defense into one motion — raising them piecemeal later is barred. Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process are waived if they're left out of that consolidated motion or never raised by motion or in the answer. Failure to state a claim, failure to join a required party under Rule 19(b), and failure to state a legal defense are treated more forgivingly — they can still be raised in a later pleading, by a Rule 12(c) motion, or even at trial. Lack of subject-matter jurisdiction can never be waived: the court must dismiss the action the moment it determines that jurisdiction is missing, no matter how late in the case that happens. And if a party asks, the court must decide any Rule 12(b) defense or Rule 12(c) motion before trial, unless it orders the issue deferred until then.