Rule 12.Defenses and objections: When and how presented; motion for judgment on the pleadings; consolidating motions; waiving defenses; pretrial hearing
Current through January 1, 2025 · Last verified July 8, 2026
In one sentenceRule 12 sets the deadlines for answering a complaint, lists the seven defenses a party may raise by motion instead of in an answer (including failure to state a claim), and governs motions for judgment on the pleadings, more definite statements, striking material, and waiver of defenses.
(1)In general. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows:
(A)A defendant shall serve an answer within 30 days after being served with the summons and complaint. Every answer shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals as required by Rule 3(b).
(B)A party shall serve an answer to a counterclaim or crossclaim within 30 days after being served with the pleading that states the counterclaim or crossclaim.
(C)A party shall serve a reply to an answer or third-party answer within 30 days after being served with an order to reply, unless the order specifies a different time.
(2)Effect of a motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A)if the court denies the motion or postpones its disposition until the trial, 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 to present defenses. Every defense to a claim for relief in any pleading shall be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1)lack of subject-matter jurisdiction;
(2)lack of personal jurisdiction;
(3)improper venue;
(4)insufficient process;
(5)insufficient service of process;
(6)failure to state a claim upon which relief can be granted; or
A motion making any of these defenses shall be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.
(c)Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay trial, a party may move for judgment on the pleadings.
(d)Result of presenting matters outside the pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment under Rule 56. All parties shall be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e)Motion for more definite statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion shall be made before filing a responsive pleading and shall point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
(f)Motion to strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act:
(1)on its own; or
(2)on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
(1)Right to join. A motion under this rule may be joined with any other motions allowed by this rule.
(2)Limitation on further motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule shall not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(1)When some are waived. A party waives any defense listed in Rule 12(b)(2)- (5) by:
(A)omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B)failing to either:
(i)make it by motion under this rule; or
(ii)include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2)When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A)in any pleading allowed or ordered under Rule 7(a);
(B)by a motion under Rule 12(c); or
(C)at trial.
(3)Lack of subject-matter jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court shall dismiss the action. If a party so moves, any defense listed in Rule 12(b)(1)-(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) shall be heard and decided before trial unless the court orders a deferral until trial.
Amendment History
The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.
Plain-English Summary
Rule 12 controls the opening moves of a defense. A defendant generally has 30 days after being served to answer, with the same 30-day period applying to answers to a counterclaim or crossclaim, and 30 days to reply to an answer if the court orders a reply. Filing certain motions under this rule — rather than answering right away — resets those deadlines: if the court denies the motion, the responsive pleading is due 14 days later; if the court orders a more definite statement, the responsive pleading is due 14 days after that statement is served.
Instead of answering immediately, a party can raise seven defenses by motion: 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. The failure-to-state-a-claim defense — often called a motion to dismiss — can also be raised at trial if no responsive pleading was required.
After the pleadings close, a party can move for judgment on the pleadings. If that motion (or a failure-to-state-a-claim motion) relies on material outside the pleadings that the court doesn't exclude, the court treats it as a motion for summary judgment instead, and gives both sides a chance to respond to the outside material. Separately, a party can move for a more definite statement when a pleading is too vague to answer, or move to strike insufficient defenses or scandalous material.
Rule 12 also governs how defenses get waived. A party generally has to raise jurisdiction, venue, process, and service defenses in its first motion or responsive pleading, or lose them — except that failure to state a claim, failure to join a required party, and lack of subject-matter jurisdiction survive longer and can be raised later, even at trial.
Frequently Asked Questions
How long do I have to answer a complaint in West Virginia?
Generally 30 days after being served with the summons and complaint, unless another time applies under Rule 12 or a statute.
What is a "12(b)(6) motion"?
A motion to dismiss for failure to state a claim upon which relief can be granted — one of the seven defenses Rule 12(b) allows a party to raise by motion instead of waiting to answer.
What happens if I don't raise a defense like improper venue in my first motion or answer?
You generally waive it. Rule 12(h) requires defenses like lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process to be raised in the first responsive motion or pleading, or they're lost.
Can I still argue failure to state a claim later in the case?
Yes. Unlike the other Rule 12(b) defenses, failure to state a claim, failure to join a required party, and lack of subject-matter jurisdiction can be raised later — even at trial for the first two, and at any time for lack of subject-matter jurisdiction.
Source & verification. The rule text is reproduced verbatim from the
official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 12). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. ·
Official source
Also known as:motion to dismissMTD12(b)(6) motionfailure to state a claimanswer deadlinewaiver of defensesjudgment on the pleadings