N.D.R.Civ.P.RULE 12. DEFENSES AND OBJECTIONS:
- WHEN AND HOW; PRESENTED - BY PLEADING OR MOTION - MOTION FOR JUDGMENT ON THE PLEADINGS; CONSOLIDATION AND WAIVING DEFENSES; PRETRIAL HEARING
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 Rule 4(m). 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. 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 as follows:
(A) A defendant shall serve an answer within 20 days after being served with the summons and complaint.
(C) A party shall serve a reply within 20 days after being served with an order to reply, unless the order specifies a different time.
(C) A party shall 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.
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 Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (i) (A) 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) (B) 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 is served.
presented to Present Defenses. 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. But a party may assert the following defenses at the option of the pleader may be made by motion: (i) (1) lack of subject-matter jurisdiction over the subject matter,; (ii) (2) lack of personal jurisdiction over the person,; (iii) (3) improper venue ,; (iv) (4) insufficiency of insufficient process ,; (v) (5) insufficiency of insufficient service of process ,; (vi) (6) failure to state a claim upon which relief can be granted ,; and (vii) (7) failure to join a party under Rule 19.
making asserting any of these defenses must be made before pleading if a further responsive pleading is permitted 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. No defense or objection is waived by being joined joining it with one or more other defenses or objections in a responsive pleading or in a 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 Rule 56, and all parties must be given reasonable opportunity to present all material made pertinent to the motion by Rule 56.
(c) Motion for Judgment on the Pleadings. After the pleadings are closed -- but
within such time as early enough not to delay the trial , -- any a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion
for judgment on the pleadings under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion shall must be treated as one for summary judgment and disposed of as provided in under Rule 56 ,. and all All parties shall must be given a reasonable opportunity to present all the material made that is pertinent to such a the motion by Rule 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 .pdf be deferred until the trial.
(e) Motion for a More Definite Statement.
If A party may move for a more definite statement of a pleading to which a responsive pleading is permitted allowed but which is so vague or ambiguous that a the party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading 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 motion is granted and the order of the court orders a more definite statement and the order is not obeyed within ten 10 days after notice of the order or within such other the time as the court may fix sets, the court may strike the pleading to which the motion was directed or make such or issue any other order as that it considers just appropriate.
(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 The court may strike from a pleading any 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 being served with the pleading.
(g) Consolidation of Defenses in a Motion.
(1) Consolidating Defenses. A
party who makes a motion under this rule may join be joined with it any other motions herein provided for and then available to the party allowed by this rule.
(2) Limitation on Further Motions.
If Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule but omits therefrom any must not make another motion under this rule raising a defense or objection then that was 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 but omitted from its earlier motion.
Waiver or preservation of Waiving and Preserving Certain Defenses.
(1) When Some Are Waived. A
defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived party waives any defense listed in Rule 12(b)(2)-(5) by:
if omitted omitting it from a motion in the circumstances described in subdivision (g), Rule 12(g)(2); or
(B) failing to either:
if it is neither made make it by motion under this rule; or
nor included include it in a responsive pleading or in an amendment permitted allowed by Rule 15(a) to be made as a matter of course.
(2) When to Raise Others.
A defense of failure Failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under person required by Rule 19(b), and an objection of failure or to state a legal defense to a claim may be made raised:
(A) in any pleading
permitted allowed or ordered under Rule 7(a) , or ;
(B) by a motion
for judgment on the pleadings, under Rule 12(c); or
the trial on the merits.
(3) Lack of Subject-Matter Jurisdiction.
Whenever it appears by suggestion of the parties or otherwise that the court If the court determines at any time that it lacks subject-matter jurisdiction of the subject matter, the court shall 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.
(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 in writing 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; September 1, 2004; March 1, 2007; March 1, 2008; ___________________.
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.
Rule 12 was amended, effective _______________, in response to the December 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, 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 (a) was amended, effective March 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.
Subdivision (b) was amended, effective March 1, 2002, to incorporate a time limitation for an objection to improper venue.
Former subdivision (d) was moved and renamed subdivision (i), effective ___________.
Subdivisions Former subdivisions (i) and (j) are derived from N.D.R.C. 1943 §§ 28-0711 and 28-0712 were deleted, effective___________. Subdivision (h) was amended in 1971 to conform to changes in the federal rule. Subdivision (i) was amended, March 1, 2008, to delete a reference to the note of issue and certificate of readiness. 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 ______________; 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.
Statutes Affected: 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).