Rule 12: responsive-pleading deadlines, pre-answer motions, and waiver of defenses

Black-letter propositions

1. 01

   A defendant must serve an answer within 21 days after being served with the summons and complaint, or within 60 days after the request for waiver was sent if it timely waived service under Rule 4(d), or 90 days if the request was sent outside any judicial district of the United States; the United States and its agencies and officers sued in an official capacity have 60 days after service on the United States attorney.

2. 02

   A party may raise by motion the defenses of lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim, and failure to join a party under Rule 19, and a motion asserting any of them must be made before pleading if a responsive pleading is allowed; joining defenses in one motion or pleading waives none of them.

3. 03

   Serving a Rule 12 motion alters the time to answer: if the court denies the motion or postpones it until trial, the responsive pleading is due 14 days after notice of the court's action, and if the court grants a motion for a more definite statement, it is due 14 days after the more definite statement is served.

4. 04

   A party that makes a Rule 12 motion must not make another Rule 12 motion raising a defense that was available but omitted, and a party waives the defenses of lack of personal jurisdiction, improper venue, insufficient process and insufficient service by omitting them from a Rule 12 motion or by failing to raise them in a motion or in a responsive pleading or amendment as of right.

5. 05

   Failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense are not waived and may be raised in any pleading, by a Rule 12(c) motion, or at trial, while lack of subject-matter jurisdiction may be raised at any time and the court must dismiss when it finds it lacks it.

6. 06

   After the pleadings are closed, a party may move for judgment on the pleadings; if on a Rule 12(b)(6) or 12(c) motion 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 and all parties must have a reasonable opportunity to present pertinent material.

7. 07

   A party may move for a more definite statement of a pleading that is so vague or ambiguous that it cannot reasonably prepare a response, before responding, and if the order is not obeyed within 14 days the court may strike the pleading; the court may strike an insufficient defense or redundant, immaterial, impertinent or scandalous matter on its own or on motion made before responding, or within 21 days after service if no response is allowed.

Use this attack sequence under time

Common wrong turns

• Personal jurisdiction, venue, process and service are waived if omitted, but subject-matter jurisdiction never is.
• Filing a Rule 12(b) motion pauses the answer deadline, and it does not excuse omitting available defenses from the motion.
• A motion to dismiss for failure to state a claim is decided on the pleadings, and attaching outside evidence risks conversion to summary judgment.

Worked example

A defendant files a Rule 12(b)(6) motion arguing that the complaint fails to state a claim, and it does not mention personal jurisdiction. The motion is denied, and the defendant then answers and asserts lack of personal jurisdiction.

Practice this topic

Deadlines and the seven defenses

Rule 12(a) sets the time to answer at 21 days after service of the summons and complaint, or 60 days after a request for waiver of service was sent, and 90 days if it was sent to a defendant outside any judicial district of the United States. The United States, a federal agency or an officer sued in an official capacity has 60 days after service on the United States attorney. A Rule 12 motion changes the period: if the court denies it or postpones it until trial, the response is due 14 days after notice, and if the court grants a motion for a more definite statement, 14 days after the statement is served.

Rule 12(b) lists the defenses that may be asserted 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 party under Rule 19. The motion must be made before pleading if a responsive pleading is allowed, and no defense is waived by joining it with others in a motion or responsive pleading.

Consolidation and waiver

Rule 12(g)(2) bars a party that makes a Rule 12 motion from making another Rule 12 motion raising a defense that was available but omitted from the earlier motion, except as Rule 12(h)(2) or (3) provides. Rule 12(h)(1) states that a party waives any defense listed in Rule 12(b)(2) through (5) by omitting it from a motion in those circumstances, or by failing either to make it by motion or to include it in a responsive pleading or an amendment allowed as of right under Rule 15(a)(1).

Rule 12(h)(2) says failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense may be raised in any pleading allowed under Rule 7(a), by a Rule 12(c) motion, or at trial. Rule 12(h)(3) provides that if the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action.

Judgment on the pleadings and related motions

Rule 12(c) allows a motion for judgment on the pleadings after the pleadings are closed, but early enough not to delay trial. Rule 12(d) provides that if on a Rule 12(b)(6) or 12(c) motion matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given a reasonable opportunity to present the material that is pertinent to the motion.

Rule 12(e) permits a motion for a more definite statement of a pleading so vague or ambiguous that the party cannot reasonably prepare a response, made before filing a responsive pleading; if the order is not obeyed within 14 days, the court may strike the pleading. Rule 12(f) lets the court strike an insufficient defense or redundant, immaterial, impertinent or scandalous matter, on its own or on motion made before responding or within 21 days after service if no response is allowed.

Frequently asked questions