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Rule 12 – Defenses and Objections; when and How; Motion for Judgment on Pleadings; Consolidation and Waiving Defenses; Pretrial Hearing

May 14, 2021 | Civil Procedure, North Dakota

(a) Time to serve a responsive pleading.

(1) In General. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is:

(A) a defendant must serve an answer within 21 days after being served with the summons and complaint;
(B) a party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim;
(C) a party must serve a reply to an answer within 21 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 trial, the responsive pleading must be served within 14 days after notice of the court’s action;
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must 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; and
(7) failure to join a party under Rule 19.

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 joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed — but early enough not to delay the 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 must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion for a 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 must be made before filing a responsive pleading and must 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 order that it considers appropriate.
(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.
(g) Consolidation of Defenses in a Motion.

(1) Consolidating Defenses. A motion under this rule may be joined with any other allowed by this rule.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or
(3), a moving party under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses.

(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) 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 must dismiss the action.
(i) Hearing Before Trial. 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) must be decided before trial unless the court orders a deferral until trial.

N.d. R. Civ. P. 12

Joint Procedure Committee Minutes of April 29-30, 2010, pages 9-10; April 24-25, 2008, pages 6-8; January 24, 2008, pages 17-18; April 26-27, 2007, pages 14-15;September 28-29, 2000, page 8; April 20, 1989, page 2; December 3, 1987, page 11; September 20-21, 1979, page 8; Fed.R.Civ.P. 12.

EXPLANATORY NOTE Rule 12 was amended, effective 1971;January 27, 1977;March 1, 1990;March 1, 2002;September 1, 2004;March 1, 2007;March 1, 2008;March 1, 2011. This rule is derived from Fed.R.Civ.P. 12. Rule 12 was amended, effectiveMarch 1, 2011, in response to theDecember 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. Subdivision (a) has been changed slightly to conform to numbering differences between these rules and the federal rules and to delete references to statutes, agencies, and officers of the United States. Subdivision (a) was amended, effectiveMarch 1, 2007, to delete a reference to service of a summons without a complaint. N.D.R.Civ.P. 4(c)(2) requires the complaint to be served with the summons. Paragraph (a)(1) was amended, effectiveMarch 1, 2011, to increase the time to serve a responsive pleading from 20 to 21 days. Paragraph (a)(2) was amended, effectiveMarch 1, 2011, to increase the time to serve a responsive pleading from 10 to 14 days. Subdivision (b) was amended, effectiveMarch 1, 2002, to incorporate a time limitation for an objection to improper venue. Former subdivision (d) was moved and renamed subdivision (i), effectiveMarch 1, 2011. Subdivision (e) was amended, effectiveMarch 1, 2011, to increase the time from 10 to 14 days. Paragraph (f)(2) was amended, effectiveMarch 1, 2011, to increase the time for a court to act on a motion to strike from 20 to 21 days. Former subdivisions (i) and (j) were deleted, effectiveMarch 1, 2011. STATUTES AFFECTED: SUPERSEDED: Sections 28-0504, 28-0704, 28-0706, 28-0707, 28-0708, 28-0709, 28-0711, 28-1712, 28-1713, 28-0716, 28-0718, 28-0722, 28-0724, 28-0725, 28-0734, 28-0910, 28-1104, 28-1606, N.D.R.C. 1943.

N.D.R.Civ.P. 4 (Persons Subject to Jurisdiction–Process–Service), N.D.R.Civ.P. 7 (Pleadings Allowed–Form of Motions), N.D.R.Civ.P. 8 (General Rules of Pleading), N.D.R.Civ.P. 9 (Pleading Special Matters), N.D.R.Civ.P. 10 (Form of Pleadings), N.D.R.Civ.P. 15 (Amended and Supplemental Pleadings), N.D.R.Civ.P. 19 (Joinder of Persons Needed for Just Adjudication), N.D.R.Civ.P. 39.1 (Change in Location of a Hearing, Proceeding, or Trial; Change of Venue), N.D.R.Civ.P. 56 (Summary Judgment); N.D.R.Ev. 408 (Compromise and Offers to Compromise); N.D.R.Ct. 8.8 (Alternative Dispute Resolution), N.D.R.Ct. 8.9 (Roster of Alternative Dispute Resolution Neutrals).