Rule 12.Defenses and objections; motion for judgment on the pleadings
Group III: Pleadings and Motions · Last amended January 1, 2018 · Last verified July 14, 2026
In one sentenceRule 12 sets the deadline for answering a Vermont complaint and lists the seven defenses - including lack of jurisdiction, improper venue, insufficient process or service, and failure to state a claim - that a party can raise by a pre-answer motion to dismiss instead of waiting for the answer.
(A)within 21 days after being served with the summons and complaint, unless the court directs otherwise when service of process is made pursuant to an order of court under Rule 4(d) or 4(g), and provided that a defendant served pursuant to Rule 4(e), 4(f), or 4(k) outside the continental United States or Canada may serve an answer at any time within 49 days after such service; or
(B)if service of the summons has been timely waived on request under Rule 4(l), within 60 days after the date when the request for waiver was sent, or within 90 days if the defendant was addressed outside any state or territory of the United States.
(2)A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 21 days after being served. The plaintiff shall serve a reply to a counterclaim in the answer within 21 days after service of the answer or, if a reply is ordered by the court, within 21 days after service of the order, unless the order otherwise directs.
(3)Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows:
(A)if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 14 days after notice of the court’s action; or
(B)if the court grants a motion for a more definite statement the responsive pleading shall be served within 14 days after the service of the more definite statement.
(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) 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. A motion making any of these defenses shall be made before pleading if a 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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
(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 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 14 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.
(f)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 21 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.
(g)Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and 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.
(1)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.
(2)A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim 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.
(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.
Notes
Reporter’s Notes—2018 Amendment: Rule 12 is amended to change its 10-day, 20-day, and 50-day time periods to 14, 21, and 49 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.
Reporter’s Notes—1996 Amendment: Rule 12(a) is amended to conform to the 1993 amendment of Federal Rule 12(a) implementing the simultaneous amendment of Rule 4(l). The amendment divides subdivision (a) into three numbered paragraphs for clarity. Rule 12(a)(1)(B) is added for consistency with new Rule 4(l)(4). See Reporter’s Notes to that amendment.
Reporter’s Notes: This rule is based on Federal Rule 12, with minor modifications. Rule 12(a) changes prior Vermont practice by basing the time for answer on the time of service, rather than on the date of writ and appearance as under 12 V.S.A. § 773 (now superseded) and former County Court Rule 14.1. See also 12 V.S.A. § 4315 (now superseded) and former Chancery Rules 10, 16, 25. The 20-day period allowed by the rule is somewhat shorter than the minimum time that defendant would have had under the former practice. If service had been made on the 21st day after the date of the writ, as permitted by 12 V.S.A. § 771, defendant would thereafter have had 21 days in which to enter his appearance under 12 V.S.A. § 772 (now superseded) and five days thereafter in which to answer under County Court Rule 14.1. The provision for extending the time on court order when service is by publication under Rules 4(d)(1) or (g), or to an arbitrary 50 days when service is outside the continental United States or Canada, is drawn from Maine Rule 12(a). Of course, the time for answer may be extended in any case on motion under Rule 6(b), and default for failure to answer in time may be set aside for good cause under Rules 55(c) or 60(b). Rule 12(b) is very similar to 12 V.S.A. § 1034 (now superseded), which was based on Federal Rule 12(b). The principal differences are that the rule specifically requires motions under it to be made before pleading if made in circumstances where further pleading is still permitted, and that the rule provides for the conversion of a motion under it into a motion for summary judgment under Rule 56 in appropriate circumstances—an important instance of the flexibility of procedure under the rules. Other differences are merely caused by the arrangement and terminology of the rules. The rule provides a simpler and more flexible procedure than that of former Chancery Rules 13-20. Rule 12(c) provides for a motion for judgment on the pleadings, a procedure previously recognized both at law and in chancery. See Sabourin v. Woish, 117 Vt. 94, 85 A.2d 493 (1951); Elliott v. Fish and Game Commission, 117 Vt. 61, 84 A.2d 588 (1951). This motion also may be converted into one for summary judgment under Rule 56. Rule 12(d) represents what was apparently the prior Vermont practice. See Shaw v. Dupont, 124 Vt. 304, 204 A.2d 159 (1964). Rules 12(e) and (f) carry forward the sense of 12 V.S.A. § 1023 (now superseded), providing for a motion to expunge or correct prolix, scandalous, or uncertain pleadings. See also former Chancery Rules 44, 45. In addition, the motion to strike under Rule 12(f) serves as the equivalent of a motion to dismiss an affirmative defense for legal insufficiency. Cf. former Chancery Rule 28. See 5 Wright & Miller, Federal Practice and Procedure § 1381 (1969). Rules 12(g) and (h) carry forward the last sentence of 12 V.S.A. § 1034 (now superseded), which was based on these subdivisions as they stood prior to a 1966 federal amendment which the new rule follows. The statute was generally similar in effect to the rule, with one major difference: Under the statute all defenses but lack of jurisdiction over the subject matter and failure to join an indispensable party were waived if not combined in a motion with other defenses or, if no motion had been made, presented in the answer. The rule adds to those defenses that are not waived, the defense of failure to state a claim upon which relief can be granted under Rule 12(b)(6) and the objection of failure to state a legal defense under Rule 12(f). It provides that these defenses and that of failure to join an indispensable party may be made even at the trial, while lack of jurisdiction of the subject matter may be asserted at any time. It seems reasonable to include defenses and objections going to the legal sufficiency of the parties’ positions in the list of those that are not waived by nonassertion, because such matters involve the heart of the litigation and are not mere ancillary or dilatory defenses such as those raised by Rule 12(b)(2)-(5).
Rule 12(a) sets the clock for a response. A defendant ordinarily must answer within 21 days of being served with the summons and complaint, extended to 49 days for service made outside the continental United States or Canada, and to 60 or 90 days when service was waived under Rule 4(l). A party served with a cross-claim has 21 days to answer it, and a reply to a counterclaim is due 21 days after the answer. Filing a motion under this rule resets those deadlines — 14 days after the court denies the motion or postpones it to trial, or 14 days after service of a court-ordered more definite statement.
Rule 12(b) is the heart of Vermont motion-to-dismiss practice. Every defense to a claim ordinarily belongs in the responsive pleading, but seven defenses may instead be raised by a pre-answer 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, and (7) failure to join a party under Rule 19. A motion raising any of these must come before any further pleading is filed, and joining several defenses in one motion or responsive pleading waives none of them. If matters outside the pleadings come before the court on a motion to dismiss for failure to state a claim, the motion converts into one for summary judgment under Rule 56, and every party must get a reasonable chance to present the material Rule 56 allows.
The rules that follow round out the mechanics. Rule 12(c) lets a party move for judgment on the pleadings once pleadings close, with the same conversion-to-summary-judgment rule if outside matters come in. Rule 12(d) requires the court to hear and decide the seven listed defenses, and a Rule 12(c) motion, before trial unless it defers them. Rule 12(e) lets a party move for a more definite statement when a pleading is too vague to answer, with a 14-day window to comply once the court grants the motion. Rule 12(f) lets the court strike an insufficient defense or redundant, immaterial, impertinent, or scandalous matter from a pleading. Rule 12(g) requires a party to consolidate available defenses in a single motion or lose the ones left out, subject to the narrower exceptions in Rule 12(h)(2). And Rule 12(h) sets the waiver rules: personal jurisdiction, venue, process, and service-of-process defenses are waived if omitted from an early motion or the first responsive pleading; failure to state a claim, failure to join an indispensable party under Rule 19, and failure to state a legal defense survive through trial; and a court must dismiss the action any time it appears the court lacks subject-matter jurisdiction.
Frequently Asked Questions
What is a Vermont motion to dismiss (MTD) under Rule 12?
It is a pre-answer motion raising one or more of the seven defenses Rule 12(b) lists, instead of waiting to raise those defenses in the answer itself. It must be filed before any further pleading if one is permitted.
What defenses can be raised in a Vermont Rule 12(b) motion to dismiss?
Lack of jurisdiction over the subject matter, lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 19.
How long does a defendant have to answer a complaint in Vermont?
Twenty-one days after being served, generally. That extends to 49 days for service made outside the continental United States or Canada, and to 60 or 90 days when service was timely waived under Rule 4(l), depending on where the defendant was addressed.
What happens if the court considers evidence outside the pleadings on a Vermont Rule 12(b)(6) motion?
The motion converts into one for summary judgment and is decided under Rule 56, and the court must give every party a reasonable opportunity to present the material Rule 56 makes relevant to that kind of motion.
Can I raise lack of personal jurisdiction later if I already filed a pre-answer motion in Vermont?
Generally no. Rule 12(h)(1) waives a defense of lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process if it is left out of an earlier motion under this rule or out of the first responsive pleading. By contrast, failure to state a claim, failure to join an indispensable party, and lack of subject-matter jurisdiction can still be raised later, and subject-matter jurisdiction can be raised at any time.
Source & verification. Rule text, official Reporter's Notes, and
amendment history are reproduced verbatim from the Vermont Rules of Civil Procedure,
adopted by the Vermont Supreme Court. Last verified July 14, 2026.
· Official source
Also known as:vermont motion to dismissMTDvrcp 12vermont rule 12b6failure to state a claim vermontmotion for judgment on the pleadings vermont