RULE 12. DEFENSES AND OBJECTIONS -- WHEN AND HOW PRESENTED -- BY PLEADING OR MOTION -- MOTION FOR JUDGMENT ON PLEADINGS
(a) When presented. A defendant who is served with a summons shall serve an answer
thereto within 20 days after service of the summons, unless the court directs otherwise when
service of process is made pursuant to N.D.R.Civ.P. 4
(d)(4) (m); if a
copy of the complaint
is not served with the summons, and demand therefor is made pursuant to N.D.R.Civ.P.
4(c)(2), within 20 days after the service of the complaint. A party who is served with a
cross-claim shall serve an answer thereto within 20 days after service of the cross-claim. The
plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of
the answer or, if a reply is ordered by court, within 20 days after service of the order, unless
the order otherwise directs. The service of a motion permitted under this rule alters those
periods of time as follows, unless a different time is fixed by order of the court: (i) if the
court denies the motion or postpones its disposition until the trial on the merits, the
responsive pleading must be served within 10 days after notice of the court's action; (ii) if
the court grants a motion for a more definite statement, the responsive pleading must be
served within 10 days after the service of the more definite statement.
(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, must be asserted in the responsive pleading thereto if one is required, but the following defenses at the option of the pleader may be made by motion: (i) lack of jurisdiction over the subject matter, (ii) lack of jurisdiction over the person, (iii) improper venue, (iv) insufficiency of process, (v) insufficiency of service of process, (vi) failure to state a claim upon which relief can be granted, (vii) failure to join a party under N.D.R.Civ.P. 19. A motion making any of these defenses must be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting defense numbered (vi), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment and disposed of as provided in N.D.R.Civ.P. 56, and all parties must be given reasonable opportunity to present all material made pertinent to the motion by N.D.R.Civ.P. 56.
(c) Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in N.D.R.Civ.P. 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by N.D.R.Civ.P. 56.
(d) Preliminary hearings. The defenses specifically enumerated (i)--(vii) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
(e) Motion for 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 interposing a responsive pleading. The motion must point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it considers just.
(f) Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party may not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
(h) Waiver or preservation of certain defenses.
(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by N.D.R.Civ.P. 15(a) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under N.D.R.Civ.P. 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under N.D.R.Civ.P. 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
(3) 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.
(i) Offer of fixed damages. Service. In an action arising on contract, the defendant may serve upon the plaintiff with the answer an offer in writing that if the defense fails the damages will be assessed at a specific sum, and if the plaintiff signifies acceptance thereof in writing with or before service of the note of issue and certificate of readiness and on the trial has a verdict, the damages must be assessed accordingly.
(j) Effect if offer of fixed damages rejected. If the plaintiff does not accept an offer of fixed damages, the plaintiff must prove the plaintiff's damages as if it had not been made and is not permitted to introduce the offer in evidence. If the damages in the plaintiff's favor do not exceed the sum stated in the offer, the defendant may recover costs incurred in consequence of any necessary preparations or defense in respect to the question of damages.
Rule 12 was amended, effective 1971; January 27, 1977; March 1, 1990; March 1, 2002.
This rule is derived from Fed.R.Civ.P. 12, with the addition of subdivisions (i) and (j) providing for an offer of fixed damages.
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, effective September 1, 2004, to replace an obsolete reference to N.D.R.Civ.P. 4(d)(4) with a reference to N.D.R.Civ.P. 4(m).
Subdivision (b) was amended, effective March 1, 2002, to incorporate a time limitation for an objection to improper venue.
Subdivisions (i) and (j) are derived from N.D.R.C. 1943 § § 28-0711 and 28-0712. Subdivision (h) was amended in 1971 to conform to changes in the federal rule.
Rule 12 was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
SOURCES: Joint Procedure Committee Minutes of 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.
Superseded: N.D.R.C. 1943 § § 28-0504, 28-0704, 28-0706, 28-0707, 28-0708, 28-0709, 28-0711, 28-1712, 28-1713, 28-0716, 28-1718, 28-0722, 28-0724, 28-0725, 28-0734, 28-0910, 28-1104, 28-1606.
CROSS REFERENCE: 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).