Waiver of Defenses – A party waives all defenses and objections which the party does not present either by motion as hereinbefore provided, or, if the party has made no motion, in the party’s answer or reply, or any amendments thereto, (provided, however, the defenses enumerated in 12.02(2), (3), (4), and (5) shall not be raised by amendment) except (1) that the defense of failure to state a claim upon which relief can be granted, the defense of failure to join an indispensable party, the defense of lack of capacity, and the objection of failure to state a legal defense to a claim may also be made by a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits, and except (2) that, 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. The objection or defense, if made at trial, shall be disposed of as provided in Rule 15 in the light of any evidence that may have been received.
Tenn. R. Civ. P. 12.08
Advisory Commission Comments.
12.01: Rule 12.01 requires that the defendant serve an answer within 30 days after being served with summons and complaint, and also allows the plaintiff 30 days in which to serve an answer to a counterclaim or a reply if one is required. The Rule does not change Tenn. Code Ann. § 20-2-205 and Tenn. Code Ann. § 20-2-215 which govern the special situation where service is had through the Secretary of State upon the personal representatives of decedents who were nonresidents or residents who were outside the state.
12.02: Rule 12.02 provides that certain matters may be raised as a defense by motion. These matters may, at the option of the pleader, be set out in the answer. Matters reached by motion expressly include those specific negative averments which are required by Rule 9.01 when a party wishes to raise an issue as to the legal existence of any party or the capacity to sue or be sued. The last sentence of the rule allows the parties to present matters outside the pleadings and thus to determine whether or not there exists a genuine issue which requires trial.
12.03: Rule 12.03 provides for the filing of a motion for judgment on the pleadings. It should be noted that if matters outside the pleadings are presented to and not excluded by the court, the motion is converted by Rule 12.03 into a motion for summary judgment and is disposed of in accordance with Rule 56.
12.04: Rule 12.04 allows certain defenses, whether raised by pleading or on motion, and the motion for judgment on the pleadings to be disposed of in advance of trial, upon application of any party, but the judge may defer hearing and determination of these matters until the trial.
12.05: Rule 12.05 provides that, 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 court on motion may direct a more specific statement. If the court grants the motion, Rule 12.05 establishes a 15-day (or otherwise as fixed by the court) limit within which the vague or ambiguous pleading must be corrected.
12.06: Rule 12.06 provides for striking out insufficient defense, or redundant, immaterial, impertinent or scandalous matter. If a party wishes to make a motion to strike, the party must do so before responding to the objectionable pleading, or if no responsive pleading is permitted, within 30 days after the objectionable pleading is served on the party. No mention of costs is made in Rule 12.06, but under Rule 54.04 the court could tax costs arising from an order to strike against the offending party.
12.07: The pleader has the option originally not to resort to a motion, but to include all the pleader’s defenses in the answer. But if the pleader by motion raises any of the defenses which can be thus raised, the pleader must at that time raise all such defenses which are available; if the pleader fails to do so he or she cannot thereafter raise these other defenses by motion. The Rule is designed to prevent seriatim defense by motion, with the consequent delay. Rule 12.07 is subject to the provisions of Rule 12.08 which allows certain defenses to be made even though not consolidated with an earlier motion.
12.08: Rule 12.08 specifies that, in general, defenses not raised by motion or answer are waived, but the waiver does not apply to the defense of lack of jurisdiction over the subject matter and certain other specified defenses relating to statement of legally sufficient claim or defense, or to failure to join necessary parties. The parties cannot by waiver or otherwise confer jurisdiction over the subject matter, and the other exceptions relate to questions which should not be waived; the defects they rely upon can be remedied by amendment if facts permit, and if the facts do not permit an amendment, the defects are of such importance that the defenses based thereon should not be waivable by failure to present them at the earliest opportunity.
Advisory Commission Comments [2001].
This change conforms Rule 12.02(7) to revised Rule 19, under which a party is rarely “indispensable.” Rule 19 presently deals with “persons to be joined if feasible.” Rule 12.08 remains unchanged, because a late objection based on Rule 19 should be permitted only when a party is truly “indispensable.”
Advisory Commission Comments [2009].
Rule 12.08 is amended to state the deadline for raising a defense of lack of capacity under Rule 9.01. This defense is found in Rule 12.02(8) by cross-reference to Rule 9.01. Lack of capacity can be raised as late as at the trial on the merits.