Responsive Pleadings and Timing

Deadlines for Responsive Pleadings

Responsive Pleadings and Timing

Rule 12(a) fixes the time for serving a responsive pleading, and it opens with a concession: unless a federal statute specifies another time, the periods that follow apply.¹ That one clause carries two lessons. The periods are defaults, so a statute that sets a different time for a particular defendant or kind of claim displaces them. And the deadline attaches to a responsive pleading, meaning a pleading that answers something another party has already pleaded. The rule sets no clock for any other paper a party might file.

The responsive pleading carries a firm clock because it is where a party takes its position on the claim. The answering party must respond to each allegation, paragraph by paragraph, and may add affirmative defenses or counterclaims.² In the ordinary case, the Federal Rules require the answer or a motion to dismiss within twenty-one days after service of the complaint, although extensions of time are frequently granted, often with the opposing party's consent.³ The sections that follow supply the exact periods and the exceptions.

Rule 12(a)(1) lists three responsive pleadings.⁴ Each starts its own clock, so the whole map is worth holding in mind before the details arrive:

1. An answer to a complaint, due within 21 days after the defendant is served with the summons and complaint or, if the defendant timely waived service, within a longer period measured from the date the waiver request was sent.⁵
2. An answer to a counterclaim or crossclaim, due within 21 days after the party is served with the pleading that states it.⁶
3. A reply to an answer, due within 21 days after the party is served with an order to reply, unless the order specifies a different time.⁷

The first two clocks start when a party is served with another party's pleading. The third starts only when a judge orders a reply, so a reply appears only in cases where the court asks for one.

All three rules speak of serving the pleading, and the clock runs against service.⁸ An answer usually must also be filed with the court, but Rule 12(a) sets the time for serving the pleading on the other side.⁹ A paper filed with the court that never reaches the opposing party leaves the service deadline unmet.

A second distinction keeps the deadline attached to the right paper. Pleadings set out the parties' positions on the claim, while a motion is a direct application to the court for an order.¹⁰ A defendant's motion to dismiss for lack of personal jurisdiction, for example, asks the court directly to end the case. Whenever a party wants the court to act, including by granting more time, a motion is the proper vehicle. On an exam, identify what kind of paper the facts describe before you reach for a deadline.

The line between pleading and motion matters most when a defendant has a preliminary objection to the suit. Rule 12(b) requires every defense to a claim to be asserted in the responsive pleading if one is required, but it lets a party raise certain defenses by motion instead.¹¹ A motion asserting one of those defenses must be made before pleading if a responsive pleading is allowed, and joining a defense with others in a pleading or motion does not waive it.¹² The motion therefore competes with the answer for the defendant's first move. A defendant who files the motion has not yet served the pleading whose deadline Rule 12(a) sets, and a later section explains how such a motion affects the clock.

The remaining sections follow the order in which a case unfolds: the answer to the complaint (including the separate track for a defendant who waives service), the answer to a counterclaim or crossclaim, the reply, the special periods for federal government defendants, the effect of Rule 12 motions on the clock, and the cost of missing the deadline.