Reporter’s Notes (2008): A 2008 amendment to Rule 12 added a new numbered defense, 12(b)(10), improper amount of damages in the Superior Court, District Court, and Boston Municipal court. This prior amendment was part of a group of amendments to the Massachusetts Rules of Civil Procedure in light of the adoption of the statewide one-trial system for civil cases. This second 2008 amendment to Rule 12 corrects an oversight in the prior group of amendments. The correction changes the language in Rule 12(d) from “defenses specifically enumerated (1)-(9) in subdivision (b)” to “defenses specifically enumerated (1)-( 10) in subdivision (b).” The amendment to 12(d) is technical in nature and merely reflects the additional numbered defense provided by Rule 12(b)(1)-(10).

(1973): Rule 12 prescribes the basic timetable for responsive pleading and the basic mechanism for raising defenses based solely on the pleadings. Rule 56 (Summary Judgments) interrelates with the remedies afforded by Rule 12, especially Rule 12(b)(6) and Rule 12(c). But Rule 56 encompasses matters (as, for example, supporting affidavits) not confined strictly to the pleadings. A court in deciding any motion brought under any part of Rule 12 initially looks only at the pleadings.

Under Rule 12(a)(1) the deadline for filing responsive pleadings is 20 days from receipt of the pleading calling for a response. In actions involving the United States, Federal Rule 12(a) extends this period to 60 days principally to allow the necessary correspondence with the Department of Justice and any other department or agency involved in the litigation. No such extension is necessary in Massachusetts, so Rule 12 makes no special provision for suits against the Commonwealth, its subdivisions, officers, agencies, and the like. Filing any motion under Rule 12 “stops the clock” on the 20-day responding period. The clock resumes when the court either denies the motion or indicates a postponement of its decision until the trial. From the date of notice of the denial or indication, the moving party (the party obligated to respond to the pleading) has 10 days to serve his response unless the court orders otherwise. If the court grants the motion, the pleading is stricken (that is, the complaint is dismissed or the answer is stricken). In Federal practice, the dismissal or the striking is usually conditional; by amending within a period set by the court, or by otherwise eliminating the defect, the pleader can reinstate the pleading. From that point, the party originally required to respond must do so within whatever time may remain of the original period of response, or 10 days, whichever is longer, unless the court orders otherwise, Rule 15(a).

It will be convenient here to consider, out-of-order, motions for more definite statement under Rule 12(e). Because the type of “notice pleading” authorized by the Rules encourages indefinite and generalized complaints, motions for more definite statements are rarely justified. They will generally be granted only if after an indulgent reading the court concludes that the party required to respond to the pleading will not be able fairly to meet the pleading’s allegations. If such motion is granted, the court will order that a more definite statement be served within any time the court may order. From receipt of the amended pleading, the opposing party has 10 days to serve his response.

Rule 12(b), taken, with the exception of Rule 12(b)(8) and (9), directly from Federal Rule 12(b), is the heart of the defensive maneuvers previously available in Massachusetts practice: motion to dismiss, special answer, pleas or answer in abatement, plea in bar, and demurrer. The pleader may if he chooses raise any of the nine numbered defenses in his responsive pleading. If, as will much more likely be the case, he elects to raise them by motion, he is bound by three restrictions:

(a) He must make the motion before serving any responsive pleading (Rule 12(b) );

(b) He must include in his motion any defense or objection then available (Rule 12(g) and 12(h)(1) ); and

(c) If his motion fails to object to personal jurisdiction, venue, process, service of process, or misnomer of a party, he permanently waives any such omitted objection (Rule 12(h)(1)-(2) ). The idea here is to conserve judicial time by preventing a defendant from serially raising objections which the plaintiff might well be able to meet. Each of the defects covered by Rule 12(b)(2)-(5) and (8) is curable. Were a defendant permitted to raise such objections one at a time, the court might have to hear and determine as many as five separate motions. By contrast, lack of subject-matter jurisdiction (Rule 12(b)(1) ) is generally not curable, and certainly not waivable. Because such a defect is central to the court’s basic power to hear the action at all, the issue should remain open throughout, as under prior law. Jones v. Jones, 297 Mass. 198, 202, 7 N.E.2d 1015, 1018 (1937). Failure of a pleading to state a claim upon which relief can be granted, failure to state a legal defense, and failure to join an indispensable party are, true enough, curable defects, in the sense that a pleading may be amended or (frequently though not invariably) a hitherto absent party may be brought into the lawsuit. But such matters are so central to the justiciability of the dispute that failure to raise them by motion should not preclude raising them at an appropriate later stage in the litigation.

It should be emphasized here that although the three “favored” objections must be included in any pre-response motion, failure so to include them merely precludes their being raised by any subsequent or additional pre-pleading motion. They may, however, be raised (Rule 12(h)(2) ):

(a) In the response pleading itself;

(b) In a motion for judgment on the pleadings under Rule 12(c); or

(c) At the trial on the merits, presumably by motion.

The lack of subject-matter jurisdiction may be raised at any time up to final judgment on appeal, in any way, by any party, or by the court sua sponte.

Under prior Massachusetts practice, the courts resolve the problem of successive proceedings based upon the same facts in different ways, depending upon the classification of the dispute, see Stahler v. Sevinor, 324 Mass. 18, 23, 84 N.E.2d 447, 449 (1949), and cases there cited: (1) if the two actions were both at law, the court ordinarily ordered abatement of the second action; (2) if the two suits were in equity, the plaintiff had to elect dismissal of one; and (3) if one proceeding was at law and the other in equity, the plaintiff likewise had to elect. Rule 12(b)(9) alters these principles. It assumes that the court, rather than the parties, should determine the location of the ultimate litigation; conceivably, for example, the presence in the subsequent action of additional parties might dictate that judicial time and energy would best be conserved by concentrating the litigation in the second court. Whatever the decision, the rule sets up the mechanism to effectuate the court’s determination: (a) The court may dismiss the later action; or (b) it may require the parties to stipulate a voluntary dismissal of the prior action. Such stipulation is necessary in order to meet the requirements of Rule 41(a)(1)(ii).

A motion under Rule 12(b)(6), like the traditional demurrer, tests the legal sufficiency of the complaint, counterclaim, or cross-claim. It should be allowed if and only if “it appears to a certainty that [the claiming pleader] is entitled to no relief under any state of facts which could be proved in support of the claim.” 2A Moore, Federal Practice 2245 (original emphasis).

A demurrer looked only to the pleading which it treated. A Rule 12(b)(6) motion may be similarly limited. If, however, in treating the motion, either at the preliminary hearing prescribed in Rule 12(d) or otherwise, the court considers matters outside the pleadings, including uncontroverted allegations by counsel, the motion will be treated as a motion for summary judgment under Rule 56, and all parties, including parties who may not be joining in the original motion, will be afforded an opportunity to present material pertinent to a Rule 56 motion. Under prior practice, a “speaking” demurrer would be dismissed. Davenport v. Town of Danvers, 332 Mass. 580, 582, 126 N.E.2d 530, 531 (1955).

One other distinction between Rule 12(b)(6) and demurrer practice should be noted. In Massachusetts, a demurrer had to stand alone and could not be presented along with other motions or with an answer to the declaration or bill. The Rules encourage, indeed require, concentration of defensive pleadings and motions. Therefore the defense raised by Rule 12(b)(6), whether in motion, answer, or otherwise, may be presented either alone or in combination. A motion under Rule 12(b)(6) must contain a statement of grounds. This closely resembles prior practice, G.L. c. 231, § 16.

Rule 12(c) is designed to cover the rare case where the answer admits all the material allegations of the complaint (or the reply admits all the allegations of the counterclaim) so that no material issue of fact remains for adjudication. Because under Rule 8(d) all allegations in the usual answer (that is, one to which no reply is required or permitted) are taken as denied, a defendant will normally not even be eligible to move for judgment on the pleadings. If, in any event, the court considers matters outside the pleadings, the motion will be treated as one for summary judgment under Rule 56.

The Rules abolish the bill of particulars, see e.g., G.L. c. 231, § 14 (a bill of particulars must be filed in an action on the common counts). Under the principles of notice-pleading espoused by the Rules, a responding party is supposed to obtain clarification of his opponent’s vague pleading through use of the various discovery procedures, particularly interrogatories (Rule 33 ) and depositions (Rule 30 ). Occasionally, however, a pleading may be so murky that it defies any intelligent response. In that rare case, Rule 12(e) permits the responding party to bring his specific inability to the court’s attention and permits the court to order an appropriate amendment.

Rule 12(f) indicates explicitly that although the court may, sua sponte, clean up the pleadings (literally and figuratively) at any time, it may strike an insufficient defense only if the plaintiff takes the initiative. A motion to strike a defense as insufficient is the counterpart of a motion under Rule 12(b)(6), see Lehmann Trading Corp. v. J & H Stolow, Inc., 184 F. Supp. 21, 22 (S.D.N.Y. 1960 ). Although Federal Rule 12(f) makes no provision for the court’s consideration of matters outside the pleadings, the federal courts have done so, Wilkinson v. Field, 108 F. Supp. 541, 545 (W.D.Ark. 1952 ), 2A Moore, Federal Practice 2320. Accordingly, the Reporters felt that such provision ought to be made explicit. Under Rule 12(f), as under existing federal practice, a motion to strike an insufficient defense searches the pleadings; in hearing such a motion, the court may properly dismiss the complaint for failure to state a claim upon which relief can be granted, just as though the defendant had been the moving party under Rule 12(b)(6), Gunder v. New York Times Co. , 37 F. Supp. 911, 912 (S.D.N.Y. 1941 ).

Reporter’s Notes (2008):Rule 12(b) has been amended to add a new numbered defense, 12(b)(10). This defense permits a defendant to raise by motion to dismiss the issue whether the amount of damages that the plaintiff is reasonably likely to recover meets the requirements of G.L. c. 212, § 3 (Superior Court) or G.L. c. 218, § 19 (District Court and Boston Municipal Court). Under G.L. c. 212, § 3, an action may proceed in the Superior Court “only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000….” Under G.L. c. 218, 19, an action may proceed in the District Court or Boston Municipal Court “only if there is no reasonable likelihood that recovery by the plaintiff will exceed $25,000….” Before the addition of new Rule 12(b)(10), the issue whether the plaintiff met the statutory requirements regarding the $25,000 amount was not included among the defenses enumerated in Rule 12(b), and presumably could be raised only in the answer. With this amendment, the issue may now also be raised by a motion to dismiss. In addition, Rule 12(h) has been amended to provide that failure to raise improper amount of damages in a motion to dismiss or answer constitutes a waiver. Violation of the statutory requirements regarding the $25,000 amount is procedural, not jurisdictional. G.L. c. 212, 3A(b); G.L. c. 218, 19A(b). See Sperounes v. Farese, 449 Mass. 800 (2007). In Sperounes, the Court held that under the statewide one-trial system, a District Court judge must dismiss an action where an objection has been made and where there is a reasonable likelihood the plaintiff will recover more than $25,000. However, where the defendant does not object, a District Court judge has the discretion to dismiss the action sua sponte or to permit it to proceed. Sperounes v. Farese, supra at 806-807.