RULE 12. DEFENSES AND
- WHEN AND HOW;
PRESENTED - BY
PLEADING OR MOTION - MOTION FOR JUDGMENT ON THE
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:
(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.
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
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
the responsive pleading must be served within 10 14 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 14 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. A motion 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
time as early enough not to delay the
trial , -- any a party may move
for judgment on the
(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
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 14 days after notice of the order or within such
other the time as the court may
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
(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.
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
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
(2) Limitation on Further Motions.
If Except as provided in Rule 12(h)(2) or (3), a
makes a motion moving party 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
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
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
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
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
(A) in any pleading
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
(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
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
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
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
, with the addition
of subdivisions (i) and (j)
providing for an offer of fixed damages.
Rule 12 was amended, effective March 1, 2011, 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.
Paragraph (a)(1) was amended, effective March 1, 2011, to increase the time to serve a responsive pleading from 20 to 21 days.
Paragraph (a)(2) was amended, effective March 1, 2011, to increase the time to serve a responsive pleading from 10 to 14 days.
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 March 1, 2011.
Subdivision (e) was amended, effective March 1, 2011, to increase the time from 10 to 14 days.
Paragraph (f)(2) was amended, effective March 1, 2011, to increase the time for a court to act on a motion to strike from 20 to 21 days.
Subdivisions Former subdivisions (i)
and (j) are derived from N.D.R.C. 1943 §§ 28-0711 and
28-0712 were deleted, effective March 1, 2011. 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 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.
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).