Concept
Timing and Preservation
Motions addressed to the face of the pleadings
Timing and Preservation
Every Rule 12 motion asks the court to act on a pleading before the moving party must respond to it. That request raises three timing questions: what happens to the answer deadline while the motion is pending, what a party who moves must put into the motion, and which objections survive once a first response is served. The motions taught earlier already carry clocks of their own. A motion for a more definite statement “must be made before filing a responsive pleading,”1 and a party’s motion to strike must come “either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.”2 This unit shows how those stages fit together.
Serving a motion changes the defendant’s deadline to answer. Without that change, a defendant who asked the court to dismiss, restate, or trim a pleading would still have to answer the same pleading while the request was pending, or gamble on missing the deadline. A party who moves must also put every Rule 12 objection then available into that one motion. Otherwise a defendant could stretch the pre-answer stage by spending objections one motion at a time. Vagueness under Rule 12(e) is the natural example, since a pleading’s unclarity shows on its face the day it is served.
A first response does not end every objection, however. Failure to state a claim, the central pleading attack of this chapter, is itself one of the defenses Rule 12 lists,3 yet a defendant need not raise it before answering. A defendant who answers without moving can still seek judgment on the pleadings once the pleadings close.4 The difference follows from what each objection asks. Failure to state a claim asks whether the facts pleaded entitle the plaintiff to relief. Under the traditional formulation, the court does not inquire whether the plaintiff can prove those facts; it construes the claim in the plaintiff’s favor and assumes the plaintiff will prove them.5 A court can ask that question after the answer as readily as before it. Some objections, by contrast, are waived by omission from a pre-answer motion.6 Personal jurisdiction, venue, process, and service are the standard examples, and the course treats that waiver elsewhere, so they appear here only as a contrast. The subsections below take the three rules in the order a defendant meets them.
Effect on Time to Answer
Rule 12(a) sets the time for serving a responsive pleading, meaning the answer or other formal reply the rules call for, unless a federal statute specifies another time.7 A defendant served with the summons and complaint ordinarily has 21 days after service.8 Rule 12(a)(4) then adds that, unless the court sets a different time, serving a motion under Rule 12 alters those periods.9 The 21 days serve here as a baseline, the deadline that a motion moves.
The alteration solves a dilemma. A defendant who moves is asking the court to change or end the very pleading the answer must respond to. If the clock kept running, the defendant could answer on schedule, admitting and denying allegations in a pleading that may be dismissed or rewritten, and so commit to positions about a document that never governs the case. Or the defendant could wait for the ruling and risk missing the deadline. Altering the period lets the defendant wait for the court’s decision and then answer the pleading in the form it finally takes.
Rule 12(a)(4)(B) gives the clearest illustration: if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.10 The earlier discussion of Rule 12(e) showed that the pleader has a set time to restate after the court’s order,11 and this rule picks up at the next link. The defendant’s clock starts when the restated pleading is served. It does not start when the court grants the motion, and it does not run from the day the original complaint arrived. The timing follows from what the movant claimed. A party who moves under Rule 12(e) says the original pleading cannot reasonably be answered, so requiring an answer to it would defeat the motion, and the answer falls due only after the pleading that will govern the case exists. Rule 12(a)(4) has other paragraphs for other outcomes, but this one is enough to show the pattern.
A tempting mistake is to think that a defendant who means to move gets extra time by meaning to. The rule ties the change to serving a motion under Rule 12, so intending or drafting a motion alters nothing.
What separates the contractor from the bank is whether anything was served within the 21 days; the strength of either lawyer’s argument plays no part. Two phrases in the rule narrow it further. The alteration applies only to a motion “under this rule,” meaning one that Rule 12 itself authorizes, and it operates “unless the court sets a different time,” so a judge’s order controls over the periods the rule would otherwise produce.12 A careful answer therefore states the 14-day period after a restated pleading together with the qualification that the court may fix another time.
The Consolidation Rule
A motion that postpones the answer gives a defendant a reason to serve another one, and Rule 12(g)(2) takes that reason away. Except as Rule 12(h)(2) or (3) provides, a party that makes a motion under Rule 12 must not make another motion under that rule raising a defense or objection that was available to the party but omitted from its earlier motion.14
The limit comes paired with a permission. A Rule 12 motion may be joined with any other motion Rule 12 allows,15 and no defense or objection is waived by joining it with others in a motion.16 Together the two provisions let a party bring as many objections as it has, provided it brings them in one round. A defendant who moves to dismiss for failure to state a claim can therefore ask in the same papers for a more definite statement and for the striking of offending matter. The alternative requests do not contradict one another. The defendant argues for clarity and, if the court disagrees, makes its best effort on the other grounds.17
A single round serves the court and the plaintiff. Objections spent one at a time would each bring their own briefing and argument, and because serving a Rule 12 motion alters the time to answer, each would also push back the day on which the defendant must admit or deny anything. Consolidation lets the court rule on everything together, postpones the answer once, and gives the plaintiff one attack to meet. The word available keeps the rule fair, since no one can be faulted for omitting an objection it had no way to raise.
The rule applies only after a party has actually made a Rule 12 motion. It requires consolidation when a party moves and says nothing to compel a motion, so a defendant who goes straight to an answer has not triggered it.18 By its terms it binds any party that moves, so a plaintiff who moves against an answer is as limited as a defendant who moves against a complaint.19 What the rule asks of a mover is completeness, and the practical question becomes which objections were within reach when the first motion was made.
An objection is available if the party could have raised it when it made the first motion. For objections that depend on what a pleading says, that moment arrives when the pleading is served, because the pleading says then whatever it is going to say. Consider a defendant whose first pre-answer motion attacked service of process and was denied. A second pre-answer motion for a more definite statement is probably barred, because the complaint was as unclear on the day it arrived as it was later, and the defendant was required to assert that objection in the first motion.20 The same reasoning reaches the redundant or immaterial matter that Rule 12(f) addresses, which a defendant can also see on first reading. The vagueness and clutter motions described earlier in this chapter therefore belong in the first motion, alongside any motion to dismiss.
An objection that could not have been raised stands on different ground. The decision in Matos v. Nextran, Inc. looks at first like an exception. Nextran moved unsuccessfully to dismiss for lack of personal jurisdiction and later moved to dismiss for failure to state a claim and, in the alternative, for a more definite statement and to strike parts of the complaint, which resembles the second pre-answer motion the rule forbids.21 The opinion does not say why the later motion was heard, but its quotations from an amended complaint suggest the answer. The plaintiffs appear to have amended after the first motion, and an amendment that adds or changes claims creates targets that did not exist when the first motion was filed.22 A defense cannot have been available against a claim that was not yet in the complaint. The same logic lets a defendant who never received a copy of the complaint file a second motion, since that defendant could not have known the pleading was incomprehensible or legally insufficient.23 Objections to process and service work differently. They depend on how the papers were delivered, not on what the papers say, so a vague complaint never makes them unavailable.24
The opening clause of Rule 12(g)(2) excepts the defenses that Rule 12(h)(2) and (3) preserve, which keeps the consolidation rule from catching the most basic objections. Lack of subject-matter jurisdiction can be raised whenever the court determines it is missing,25 and failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense are among the defenses that may be raised later.26 A defendant whose first pre-answer motion left out failure to state a claim therefore usually cannot file a second pre-answer motion on that ground. The objection itself survives: Rule 12(g)(1) bars only another pre-answer motion, and Rule 12(h)(2) lets the defendant raise the point in the answer, by a later motion, or at trial.27 The next subsection teaches those preserved defenses in full. The point to hold here is that they are the exception to consolidation, so omitting one from a first motion costs a party the second pre-answer motion and nothing more.
The bar reaches only a party’s motion. Rule 12(f)(1) lets the court strike matter on its own,28 and the consolidation rule, which restricts a party that makes a motion, does not by its terms limit that power.29 Harmon’s omission costs it the right to press the point as a party. Whether the paragraph comes out is left to a judge who may or may not care to act.
Defenses Preserved for Later
Rule 12(h)(2) names three objections that survive the early stages of a case: failure to state a claim upon which relief can be granted, failure to join a person required by Rule 19(b), and failure to state a legal defense to a claim.31 Each may be raised in any pleading allowed or ordered under Rule 7(a), by a motion under Rule 12(c), or at trial.32 The rule answers a worry the consolidation rule leaves behind. A party that makes one pre-answer motion and omits an available objection usually cannot make a second pre-answer motion on it, and a student might conclude that the omitted objection is gone. For these three objections it is not gone, because Rule 12(h)(2) supplies other places where the party can still be heard.
These objections receive that protection because each is bound up with the merits of the case. Deciding whether a complaint states a claim requires asking what the substantive law gives the plaintiff, and deciding who is required under Rule 19 requires the court to look into the merits to see whose interests the claim touches.33 If a party could forfeit either objection by leaving it out of a first motion, the action might go forward without a person who must be present or, anomalously, on a claim the governing law does not support.34 The third objection, that a defense is legally insufficient, mirrors the first from the plaintiff’s side. A court also has its own stake in the first, since there is no reason to go to trial on a claim the law does not recognize, and dismissal at the outset is what Rule 12(b)(6) is designed to accomplish.35
The first two places listed in the rule give a defendant a way back after an early omission. An answer is a pleading the rules allow and require, so a defendant whose first pre-answer motion attacked service of process and was denied may still plead failure to state a claim in the answer. The consolidation rule barred only a further pre-answer motion and left the answer open.36 A defendant who never moved at all can wait until the pleadings close and then move for judgment on the pleadings, which tests the legal sufficiency of the complaint at that later point.37 Rule 12(h)(2)(B) makes that motion available for these objections.38 A defendant who answered without moving, or who answered without even mentioning the objection, has therefore not lost the legal attack on the complaint, because these defenses are not waived by leaving them out of a pre-answer motion or even out of the answer.39
The third place, trial, keeps the objection alive for the whole proceeding but not beyond it. A defendant who presses the point while the case is being tried is within the rule, but one who stays silent through the pleadings and the trial and raises the point for the first time after the trial has ended is too late.41 The forgiveness in Rule 12(h)(2) is real but not unlimited, and a party who fails to assert these defenses before the close of trial can waive them.42 The limit follows from the purpose of the objection. These defenses keep a case that cannot succeed, or cannot fairly proceed, from going forward, and once the trial is over there is nothing left to prevent.
Subject-matter jurisdiction stands on different footing, and Rule 12(h)(3) shows how. If the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action.43 The preserved defenses come with a list of places where a party may raise them, and the list ends with trial. This rule is phrased as a duty of the court, and no party’s silence relieves the court of it. No court can act beyond its subject-matter competence, so the court dismisses whenever the lack comes to its attention.44 Lack of subject-matter jurisdiction is accordingly never waived, while the three preserved defenses are forgiven only until the trial ends.
Preserving a defense for later does not oblige a party to wait for later. Rule 12(i) provides that if a party so moves, any defense listed in Rule 12(b)(1) through (7), whether made in a pleading or by motion, and any Rule 12(c) motion must be heard and decided before trial unless the court orders a deferral until trial.45 The list reaches beyond the three preserved defenses, so a defendant who set out failure to state a claim in an answer, and not in a motion, can still ask for an early ruling. The reason is practical. A defense that could end the case is worth the most before the parties have paid for a trial, and without the rule a defense pleaded in an answer could sit undecided until trial began. The rule depends on the party moving, so a defendant who does nothing has no entitlement to a pretrial ruling. Defenses included in the answer will ordinarily still be heard before trial on any party’s application, and the judge keeps discretion to defer them.46
An exam stem may ask what a defendant gives up by answering without having filed any Rule 12 motion. For failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense, the answer is nothing, since they survive omission from both a pre-answer motion and the answer.47 Subject-matter jurisdiction survives everything. The objections about where and how the suit was begun are the ones that can be lost by omission,48 and how that waiver works belongs to a different reading. A defendant who treats those objections as if they enjoyed the preserved defenses’ forgiveness can lose a defense that a prompt motion would have saved.
The common slip is to read “preserved” as “unlimited.” The rule gives these objections three stages and ends them with trial, and the pretrial hearing rule is the tool for a party who wants an answer sooner.