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§ 6-1112. Defenses and objections — when and how presented; by pleading or motion; motion for judgment on the pleadings.

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   (a) When Presented.

   (1) A defendant shall serve an answer within 30 days after being served with the summons and complaint or completion of service by publication.

   (2) A party served with a pleading stating a cross‑claim against that party shall serve an answer thereto within 30 days after being served. A plaintiff shall serve a reply to a counterclaim in the answer within 30 days after being served with the answer, or, if a reply is ordered by the court, within 15 days after service of the order, unless the order otherwise directs.

   (3) [Reserved]

   (4) Unless a different time is fixed by court order, the service of a motion permitted under this rule alters these periods of time as follows:

   (A) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 20 days after notice of the court's action; or

   (B) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 20 days after the service of the more definite statement.

COMMENT

 

   Subpart 4 defines the time in which a defendant must file an answer after the court denies a motion such as one raising the defense in subpart (b)(6), or after the plaintiff files an amended complaint in response to the grant of a motion for a more definite statement. The rules do not define the time in which a plaintiff must act if the court sustains a motion filed under subpart (b). If the defect can be corrected, such as by serving the summons and complaint again to remedy a defect in the attempt to serve process or by serving an amended complaint to remedy the failure to state a claim, the court must define the time in which plaintiff can act. If the defect cannot be corrected or the plaintiff does not correct the defect within the permitted time the court can render a judgment dismissing the action.

 

   (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, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

   (1) lack of jurisdiction over the subject matter;

   (2) lack of jurisdiction over the person;

   (3) [reserved]

   (4) insufficiency of process;

   (5) insufficiency of service of process;

   (6) that the pleading fails to state a claim upon which relief can be granted;

   (7) failure to join a necessary party.

   A motion making any of these defense shall be made before pleading if 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 the defense numbered (6) 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 shall be treated as one for summary judgment and disposed of as provided in §§ 25‑1330 to 25‑1336, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

COMMENT

 

   Improper venue is not a ground for dismissal; the issue can be raised by a timely motion for transfer under § 25‑403.01


   (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 §§ 25‑1330 to 25‑1336 and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by statute.

   (d) Preliminary Hearings. The defenses specifically enumerated (1)‑(2) and (4)‑(7) 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 shall 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 10 days or within such time as the court may fix, the court may strike the pleading or make such order as it deems just.

   (f) Motion to Strike. Upon motion 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 30 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.

COMMENT

 

   This Rule authorizes a motion to strike a specific portion of a pleading. Section 25‑913 authorizes a motion to strike an entire pleading.

 

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions 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 shall 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.

COMMENT

 

   Subpart (g) promotes expeditious procedure by permitting the simultaneous presentation of defenses and objections by a single motion. Some defenses will be waived under subpart (h)(1) if they are omitted from a motion that is filed. Other defenses can be asserted in subsequent procedural steps under subpart (h)(2) if they are omitted from a motion that is filed. The opening clause of subpart (b) provides that any motion is optional and that all the defenses listed can be asserted in the responsive pleading.

 

   (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 § 6-1115(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 necessary party, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 6-1107(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.

COMMENT

 

   Under subpart (g) a motion to transfer an action to a court with proper venue pursuant to § 25‑403.01 may be joined with a motion under this rule. As an alternative, it may be made timely and separately because improper venue is not listed as a defense that will be waived under the circumstances described in subpart (h)(1).

 

Supreme Court Rules

This page was last modified on Thursday, October 25, 2012