Arizona

Civil Procedure

Civil Procedure

Rule 12 – Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Joining Motions; Waiving Defenses; Pretrial Hearing [Effectrive January 1, 2021]

(a) Time to File and Serve a Responsive Pleading.

(1)Generally. Unless another time is specified by rule or statute, the time for filing and serving a responsive pleading is as follows:

(A) A defendant or third-party defendant must file and serve an answer or other responsive pleading:

(i) within 20 days after being served with the summons and complaint, except as otherwise provided in Rules 4.2(d)(3) and (m); or
(ii) if it has timely waived service under Rule 4(f), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant or third-party defendant outside any judicial district of the United States.
(B) A party must file and serve an answer or other pleading responsive to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must file and serve a reply to an answer within 20 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, filing and 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 filed and served within 10 days after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be filed and served within 10 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.

A motion asserting any of these defenses must 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. A party does not waive a defense or objection by joining it with one or more other defenses or objections in a responsive pleading or in a motion. A party may assert improper venue as a defense only if the action cannot be or could not have been transferred to the proper county under A.R.S. ยง 12-404.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed-but no later than the date on which dispositive motions must be filed-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 (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. 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 filing a responsive pleading. The motion 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 10 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 20 days after the pleading is served.
(g) Joining Motions.

(1)Right to Join.A motion under this rule may be joined with any other motion allowed by this rule.
(2)Limitation on Further Motions.Except as provided in Rule 12(h)(2) or (3), a party who makes a motion 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) through (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;
(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) Preliminary Hearings. If a party so moves, any defense listed in Rule 12(b)(1) through (7) -whether made in a pleading or by motion-and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.
(j)Good Faith Consultation Certificate. A good faith consultation certificate complying with Rule 7.1(h) must accompany any motion brought under (b)(3), (b)(6), (c), or (f) of this rule.

Ariz. R. Civ. P. 12

Amended effective January 1, 2017; amended August 31, 2017, effective January 1, 2018; amended August 27, 2020, effective January 1, 2021.

State Bar Committee Note

1966 Amendment to Rule 12(h)

The first paragraph of this subdivision is not in the amended federal rule. Under the previous rule, numerous federal court decisions had divided on whether, when the party sees fit to offer a defensive motion, he may thereafter allege the defenses mentioned in this rule in his answer when he has not included them in his motion. The revised rule adopts the holding of those cases concluding that the defense is waived in such circumstances. The rule states that lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process are waived if (a) a party offers a motion and (b) does not include them. This re-emphasizes the policy of avoiding piecemeal decisions.

This does not mean that the party must make a motion. He may leave these defenses to his answer if he wishes; the requirement of the rule is merely that if he does make a motion, he must include them all at once. However, the rule further provides that the same defenses are waived unless included in either a motion or an answer, subject only to amendments as a matter of course.

This waiver rule applies only to the defenses specified, some defenses being regarded as too important to be subject to such waiver. These are the defenses of failure to state a claim upon which relief can be granted; failure to join party who is indispensable under Rule 19; failure to state a legal defense; and want of jurisdiction over the subject matter. Each can be subsequently raised.

The amendment does not alter the results of existing Arizona decisions and is in accord for example with Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019 (1958).