Pretrial Hearing on Defenses

Pretrial Hearing on Defenses

A defendant who has raised a Rule 12(b) defense next wants to know when the court will decide it. Rule 12(i) answers that question. If a party so moves, any defense listed in Rule 12(b)(1) through (7), whether made in a pleading or by motion, and a Rule 12(c) motion for judgment on the pleadings must be heard and decided before trial unless the court orders a deferral until trial.¹ The sentence has three working parts. The hearing arrives on a party's request, it covers a defense stated in the answer as well as one made by motion, and the court may defer the decision to trial.

The second part matters most to a defendant who chose to answer. Rule 12(b) requires every defense to be asserted in the responsive pleading if one is required, although a party may assert the listed defenses by motion instead.² A defendant who answers rather than moves might assume the defenses sit idle until trial. They do not. A Rule 12(b) defense included in the answer is still heard before trial on any party's application, unless the court chooses to defer it.³ The choice between answering and moving therefore does not decide whether the defendant can get an early ruling. A defendant who pleads improper venue, lack of notice, or lack of personal jurisdiction in the answer also preserves the objection and may raise it later by motion.⁴

A pretrial decision is the ordinary course for both kinds of vehicle. A motion to dismiss or a motion for judgment on the pleadings is ordinarily heard in advance of trial, and the court keeps discretion to defer the hearing and determination until trial.⁵ The default makes sense because most listed defenses attack the forum or the claim rather than the proof of it, and an early ruling can spare the parties a trial they never needed. The rule ties the entitlement to a request, so a party who wants the early ruling must ask for it.

Deferral exists because some defenses cannot be separated cleanly from the merits. Suppose a jurisdictional motion, the response, and the supporting affidavits reveal disputed material facts. The court must then resolve those facts through live testimony, and it may hear the testimony before trial or, especially when the jurisdictional issue is intertwined with the merits, together with the trial itself.⁶ That overlap is the setting in which deferral does its work.

Both defendants asked for a ruling, and what separated the outcomes was whether the defense could practically be decided apart from trial. Delmar's venue question stands alone, so the default of a pretrial decision governs. Ostrander's jurisdictional question overlaps the merits, so the court's discretion to defer governs. A deferral does not deny the defense. It postpones the ruling while the claim stays pending, which is why Rule 12(a)(4)(A) requires the responsive pleading within 14 days after notice of the court's action.⁸ A defendant whose motion is postponed cannot wait for the ruling at trial before answering.

A pretrial hearing on a failure-to-state-a-claim defense or a Rule 12(c) motion has one further limit. Matters outside the pleadings were always proper on a jurisdictional challenge. On a motion to dismiss for failure to state a claim or a motion for judgment on the pleadings, however, outside matters that the court does not exclude convert the motion into one for summary judgment under Rule 56.⁹ The parties may then present the merits and show whether a genuine issue requires trial, and the defense is still resolved before trial. Two errors recur on exams. One is assuming that a defense pleaded in the answer goes to trial. The other is assuming that a party who requested a hearing can insist on an immediate ruling after the court orders deferral. Rule 12(i) gives the party the hearing on request, and it leaves the final say about timing with the court.