§ 6-1112.Defenses and objections: when and how presented; by pleading or motion; motion for judgment on the pleadings; consolidating motions; waiving decisions; pretrial hearing.

Current version (effective January 1, 2025)

COMMENTS TO § 6-1112 [1] Subpart (a) sets the time periods for serving various motions and pleadings. The subpart was originally promulgated in 2002. In 2009, the time periods stated in Rule 12(a) of the Federal Rules of Civil Procedure were reset in multiples of 7 – in other words, 7 days, 14 days, 21 days, or 28 days. Using multiples of seven ensures that the “final day falls on the same day of the week as the event that triggered the period – the 14th day after a Monday, for example, is a Monday. See Fed. R. Civ. P. 12, Advisory Committee Notes to the 2009 Amendment. [2] The 2024 Amendments followed much the same approach. Time periods that were shorter than 30 days were reset to multiples of seven. The 30-day time period for serving a responsive pleading was retained. Although the Federal Rule 12(a) sets the time period for serving a responsive pleading at 21 days, the time period in Nebraska has been 30 days since Nebraska first became a State. [3] There was a minor anomaly in the original version of subpart (a). The time period for serving a court- ordered reply to an answer was 15 days after service of the order. By contrast, the time period for serving a responsive pleading after the denial of a motion to dismiss or grant of a motion for a more definite statement was 20 days. There is no obvious reason for the different time periods. Therefore, the 2024 Amendments eliminated the anomaly by setting 21 days as the time period for both a court-ordered reply [subpart (a)(1)(C)] and a responsive pleading after the denial or grant of a § 6-1112 motion [subpart (a)(2)]. [4] Subpart (a) does not set the time for a plaintiff to act if the court grants a motion to dismiss or quash filed pursuant to subpart (b). If the defect can be corrected – for example, by serving an amended complaint to correct a defect in the statement of the claim or by serving the summons and complaint again to correct a defect in service – then the court must set the time for the plaintiff to act. [5] The defense of another action pending can be raised when there are two pending actions that involve the same subject matter and the same parties. The defense is based on the doctrine of jurisdictional priority: as between two courts of concurrent jurisdiction, the first court that acquires jurisdiction should retain it to the exclusion of the other. See Jesse B. v. Tylee H., 293 Neb. 973, 987 (2016). [6] Prior to the adoption of the Nebraska Court Rules of Pleading, the defense of another action pending could have been raised by demurrer when the defect appeared on the face of the petition. Otherwise, it could have been raised in the answer. The defense was not mentioned in the original version of § 6-1112, however. As a result, it was unclear how a party could properly raise the defense. The 2024 Amendments provided the missing clarity by inserting the defense into subpart (b)(3). [7] Subpart (b)(3) was empty at the time. The reason was that the mechanics of raising the defense of improper venue are different in federal and state court. Rule 12(b)(3) of the Federal Rules of Civil Procedure allows the defense of improper venue to be raised by a pre-answer motion to dismiss. In Nebraska, however, the defense must be raised by a motion to transfer. See Neb. Rev. Stat § 25-403.01. Because the defense is not raised by a pre-answer motion to dismiss, the drafters of the Nebraska Court Rules of Pleading left subpart (b)(3) empty so that the numbering of the remaining subpart (b) defenses would be the same as it is in Federal Rule 12(b). [8] Subpart (b)(7) originally referred the defense of failure to join a necessary party. At the time that subpart (b) (7) was promulgated, the Supreme Court used the terms “indispensable party” and “necessary party” interchangeably. In 2017, however, the court recognized a distinction between indispensable and necessary parties. The court stated that both indispensable and necessary parties have an interest in the subject matter of the action. The difference between the two is that the interest of an indispensable party may be affected by the judgment and the interest of a necessary party will not be. See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 91 (2017). [9] Even though there is a distinction between the two types of parties, the basis of the defense is the same: the missing party should be joined. Therefore, subpart (b)(7) was amended in 2024 to read “failure to join a party under Neb. Rev. Stat. § 25-323.” The statutory reference was used because § 25-323 governs the joinder of both indispensable and necessary parties. [10] Subpart (f) authorizes a motion to strike particular parts of a pleading. By contrast, Neb. Rev. Stat. § 25- 913 authorizes a motion to strike an entire pleading. [11] Subpart (g)(2) prohibits successive pre-answer motions. If a party files a motion that raises a defense or objection under § 6-1112, the party must include any other defenses or objections that the rule allows to be raised by motion instead of raising them in a second pre-answer motion. The purpose of the prohibition is to eliminate the ability of a party to drag out the pleading stage of a case by raising defenses and objections piecemeal. If the party omits a defense or objection that was available to the party when it filed its motion, the party cannot file a second motion to raise the omitted defense or objection. [12] For example, if a party unsuccessfully files a pre-answer motion to dismiss for failure to state a claim on one ground, the party cannot subsequently file a second pre-answer motion to dismiss for failure to state a claim on different ground. That is true even though the defense of failure to state a claim is not waived by failing to raise it in an earlier motion. Instead of filing a second motion to dismiss, the party must raise the other ground in a manner authorized by subpart (h)(2). To allow the party to raise the other ground by filing a second pre-answer motion to dismiss would be contrary to the language and purpose of subpart (g)(2). [13] The defense of another action pending is not jurisdictional. The Supreme Court has indicated, however, that an appellate court may raise the defense on an appeal even though the parties did not raise it below. See Brinkman v. Brinkman, 302 Neb. 315, 319 (2019). That indicates that the defense is one that cannot be waived. [14] Subpart (h)(3) provides that a court must dismiss the action if it determines that it lacks subject matter jurisdiction. Subpart (h)(3) takes a different approach for the defense of another action pending by giving the court the discretion to dismiss or stay the action rather than mandating that the court do so.

Prior version (in effect before January 1, 2025)

COMMENT Subpart 4 defines the time in which a defendant must file an answer after the court denies a motion such as one raising the defense in subpart (b)(6), or after the plaintiff files an amended complaint in response to the grant of a motion for a more definite statement. The rules do not define the time in which a plaintiff must act if the court sustains a motion filed under subpart (b). If the defect can be corrected, such as by serving the summons and complaint again to remedy a defect in the attempt to serve process or by serving an amended complaint to remedy the failure to state a claim, the court must define the time in which plaintiff can act. If the defect cannot be corrected or the plaintiff does not correct the defect within the permitted time the court can render a judgment dismissing the action. (b) 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: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (3) [reserved] (4) insufficiency of process; (5) insufficiency of service of process; (6) that the pleading fails to state a claim upon which relief can be granted; (7) failure to join a necessary party. A motion making any of these defense shall be made before pleading if further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. 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 §§ 25-1330 to 25-1336, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute. COMMENT Improper venue is not a ground for dismissal; the issue can be raised by a timely motion for transfer under § 25-403.01. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings 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 §§ 25-1330 to 25-1336 and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(2) and (4)-(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, unless the court orders that the hearing and determination thereof be deferred until the trial. (e) Motion for More 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, the party may move for a more definite statement before interposing a 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 10 days or within such time as the court may fix, the court may strike the pleading or make such order as it deems just. (f) Motion to Strike. Upon motion 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 30 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. COMMENT This Rule authorizes a motion to strike a specific portion of a pleading. Section 25-913 authorizes a motion to strike an entire pleading. (g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated. COMMENT Subpart (g) promotes expeditious procedure by permitting the simultaneous presentation of defenses and objections by a single motion. Some defenses will be waived under subpart (h)(1) if they are omitted from a motion that is filed. Other defenses can be asserted in subsequent procedural steps under subpart (h)(2) if they are omitted from a motion that is filed. The opening clause of subpart (b) provides that any motion is optional and that all the defenses listed can be asserted in the responsive pleading. (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, 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 § 6-1115(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a necessary party, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 6-1107(a), or by motion for judgment on the pleadings, or at the trial on the merits. (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. COMMENT Under subpart (g) a motion to transfer an action to a court with proper venue pursuant to § 25-403.01 may be joined with a motion under this rule. As an alternative, it may be made timely and separately because improper venue is not listed as a defense that will be waived under the circumstances described in subpart (h)(1).