Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
(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) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
(B) 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.
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is 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 joining it with one or more other defenses or objections in a responsive pleading or in a motion.
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
(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.
(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(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 heard and decided before trial unless the court orders a deferral until trial.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)
Notes of Advisory Committee on Rules—1937
Note to Subdivision (a). 1. Compare [former] Equity Rules 12 (Issue of Subpoena—Time for Answer) and 31 (Reply—When Required—When Cause at Issue); 4 Mont.Rev.Codes Ann. (1935) §§9107, 9158; N.Y.C.P.A. (1937) §263; N.Y.R.C.P. (1937) Rules 109–111.
2. U.S.C., Title 28, §763 [now 547] (Petition in action against United States; service; appearance by district attorney) provides that the United States as a defendant shall have 60 days within which to answer or otherwise defend. This and other statutes which provide 60 days for the United States or an officer or agency thereof to answer or otherwise defend are continued by this rule. Insofar as any statutes not excepted in Rule 81 provide a different time for a defendant to defend, such statutes are modified. See U.S.C., Title 28, [former] §45 (District courts; practice and procedure in certain cases under the interstate commerce laws) (30 days).
3. Compare the last sentence of [former] Equity Rule 29 (Defenses—How Presented) and N.Y.C.P.A. (1937) §283. See Rule 15(a) for time within which to plead to an amended pleading.
Note to Subdivisions (b) and (d). 1. See generally [former] Equity Rules 29 (Defenses—How Presented), 33 (Testing Sufficiency of Defense), 43 (Defect of Parties—Resisting Objection), and 44 (Defect of Parties—Tardy Objection); N.Y.C.P.A. (1937) §§277–280; N.Y.R.C.P. (1937) Rules 106–112; English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1–4; Clark, Code Pleading (1928) pp. 371–381.
2. For provisions authorizing defenses to be made in the answer or reply see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 25, r.r. 1–4; 1 Miss.Code Ann. (1930) §§378, 379. Compare [former] Equity Rule 29 (Defenses—How Presented); U.S.C., Title 28, [former] §45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). U.S.C., Title 28, [former] §45, substantially continued by this rule, provides: “No replication need be filed to the answer, and objections to the sufficiency of the petition or answer as not setting forth a cause of action or defense must be taken at the final hearing or by motion to dismiss the petition based on said grounds, which motion may be made at any time before answer is filed.” Compare Calif.Code Civ.Proc. (Deering, 1937) §433; 4 Nev.Comp.Laws (Hillyer, 1929) §8600. For provisions that the defendant may demur and answer at the same time, see Calif.Code Civ.Proc. (Deering, 1937) §431; 4 Nev.Comp.Laws (Hillyer, 1929) §8598.
3. [Former] Equity Rule 29 (Defenses—How Presented) abolished demurrers and provided that defenses in point of law arising on the face of the bill should be made by motion to dismiss or in the answer, with further provision that every such point of law going to the whole or material part of the cause or causes stated might be called up and disposed of before final hearing “at the discretion of the court.” Likewise many state practices have abolished the demurrer, or retain it only to attack substantial and not formal defects. See 6 Tenn.Code Ann. (Williams, 1934) §8784; Ala.Code Ann. (Michie, 1928) §9479; 2 Mass.Gen.Laws (Ter.Ed., 1932) ch. 231, §§15–18; Kansas Gen.Stat.Ann. (1935) §§60–705, 60–706.
Note to Subdivision (c). Compare [former] Equity Rule 33 (Testing Sufficiency of Defense); N.Y.R.C.P. (1937) Rules 111 and 112.
Note to Subdivisions (e) and (f). Compare [former] Equity Rules 20 (Further and Particular Statement in Pleading May Be Required) and 21 (Scandal and Impertinence); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 19, r.r. 7, 7a, 7b, 8; 4 Mont.Rev.Codes Ann. (1935) §§9166, 9167; N.Y.C.P.A. (1937) §247; N.Y.R.C.P. (1937) Rules 103, 115, 116, 117; Wyo.Rev.Stat.Ann. (Courtright, 1931) §§89–1033, 89–1034.
Note to Subdivision (g). Compare Rules of the District Court of the United States for the District of Columbia (1937), Equity Rule 11; N.M. Rules of Pleading, Practice and Procedure, 38 N.M.Rep. vii [105–408] (1934); Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e) and (f).
Note to Subdivision (h). Compare Calif.Code Civ.Proc. (Deering, 1937) §434; 2 Minn.Stat. (Mason, 1927) §9252; N.Y.C.P.A. (1937) §§278 and 279; Wash.Gen.Rules of the Superior Courts, 1 Wash.Rev.Stat.Ann. (Remington, 1932) p. 160, Rule VI (e). This rule continues U.S.C., Title 28, §80 [now 1359, 1447, 1919] (Dismissal or remand) (of action over which district court lacks jurisdiction), while U.S.C., Title 28, §399 [now 1653] (Amendments to show diverse citizenship) is continued by Rule 15.
Notes of Advisory Committee on Rules—1946 Amendment
Subdivision (a). Various minor alterations in language have been made to improve the statement of the rule. All references to bills of particulars have been stricken in accordance with changes made in subdivision (e).
Subdivision (b). The addition of defense (7), “failure to join an indispensable party”, cures an omission in the rules, which are silent as to the mode of raising such failure. See Commentary, Manner of Raising Objection of Non-Joinder of Indispensable Party (1940) 2 Fed.Rules Serv. 658 and (1942) 5 Fed.Rules Serv. 820. In one case, United States v. Metropolitan Life Ins. Co. (E.D.Pa. 1941) 36 F.Supp. 399, the failure to join an indispensable party was raised under Rule 12(c).
Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. Samara v. United States (C.C.A.2d, 1942) 129 F.(2d) 594, cert. den. (1942) 317 U.S. 686; Boro Hall Corp. v. General Motors Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S. 695. See also Kithcart v. Metropolitan Life Ins. Co. (C.C.A.8th, 1945) 150 F.(2d) 997, aff'g 62 F.Supp. 93.
It has also been suggested that this practice could be justified on the ground that the federal rules permit “speaking” motions. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term “speaking motion” is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion.
The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous matter, may resolve questions of fact on conflicting proof would be left uncertain.
The decisions dealing with this general situation may be generally grouped as follows: (1) cases dealing with the use of affidavits and other extraneous material on motions; (2) cases reversing judgments to prevent final determination on mere pleading allegations alone.
Under group (1) are: Boro Hall Corp. v. General Motors Corp. (C.C.A.2d, 1942) 124 F.(2d) 822, cert. den. (1943) 317 U.S. 695; Gallup v. Caldwell (C.C.A.3d, 1941) 120 F.(2d) 90; Central Mexico Light & Power Co. v. Munch (C.C.A.2d, 1940) 116 F.(2d) 85; National Labor Relations Board v. Montgomery Ward & Co. (App.D.C. 1944) 144 F.(2d) 528, cert. den. (1944) 65 S.Ct. 134; Urquhart v. American-La France Foamite Corp. (App.D.C. 1944) 144 F.(2d) 542; Samara v. United States (C.C.A.2d, 1942) 129 F.(2d) 594; Cohen v. American Window Glass Co. (C.C.A.2d, 1942) 126 F.(2d) 111; Sperry Products Inc. v. Association of American Railroads (C.C.A.2d, 1942) 132 F.(2d) 408; Joint Council Dining Car Employees Local 370 v. Delaware, Lackawanna and Western R. Co. (C.C.A.2d, 1946) 157 F.(2d) 417; Weeks v. Bareco Oil Co. (C.C.A.7th, 1941) 125 F.(2d) 84; Carroll v. Morrison Hotel Corp. (C.C.A.7th, 1945) 149 F.(2d) 404; Victory v. Manning (C.C.A.3rd, 1942) 128 F.(2d) 415; Locals No. 1470, No. 1469, and 1512 of International Longshoremen's Association v. Southern Pacific Co. (C.C.A.5th, 1942) 131 F.(2d) 605; Lucking v. Delano (C.C.A.6th, 1942) 129 F.(2d) 283; San Francisco Lodge No. 68 of International Association of Machinists v. Forrestal (N.D.Cal. 1944) 58 F.Supp. 466; Benson v. Export Equipment Corp. (N. Mex. 1945) 164 P.2d 380 (construing New Mexico rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v. Gould Pumps, Inc. (W.D.N.Y. 1946) 9 Fed.Rules Serv. 12b.33, Case 2, 5 F.R.D. 132. Cf. Kohler v. Jacobs (C.C.A.5th, 1943) 138 F.(2d) 440; Cohen v. United States (C.C.A.8th, 1942) 129 F.(2d) 733.
Under group (2) are: Sparks v. England (C.C.A.8th, 1940) 113 F.(2d) 579; Continental Collieries, Inc. v. Shober (C.C.A.3d, 1942) 130 F.(2d) 631; Downey v. Palmer (C.C.A.2d 1940) 114 F.(2d) 116; DeLoach v. Crowley's Inc. (C.C.A.5th, 1942) 128 F.(2d) 378; Leimer v. State Mutual Life Assurance Co. of Worcester, Mass. (C.C.A.8th, 1940) 108 F.(2d) 302; Rossiter v. Vogel (C.C.A.2d, 1943) 134 F.(2d) 908, compare s. c. (C.C.A.2d, 1945) 148 F.(2d) 292; Karl Kiefer Machine Co. v. United States Bottlers Machinery Co. (C.C.A.7th, 1940) 113 F.(2d) 356; Chicago Metallic Mfg. Co. v. Edward Katzinger Co. (C.C.A.7th, 1941) 123 F.(2d) 518; Louisiana Farmers’ Protective Union, Inc. v. Great Atlantic & Pacific Tea Co. of America, Inc. (C.C.A.8th, 1942) 131 F.(2d) 419; Publicity Bldg. Realty Corp. v. Hannegan (C.C.A.8th, 1943) 139 F.(2d) 583; Dioguardi v. Durning (C.C.A.2d, 1944) 139 F.(2d) 774; Package Closure Corp. v. Sealright Co., Inc. (C.C.A.2d, 1944) 141 F.(2d) 972; Tahir Erk v. Glenn L. Martin Co. (C.C.A.4th, 1941) 116 F.(2d) 865; Bell v. Preferred Life Assurance Society of Montgomery, Ala. (1943) 320 U.S. 238.
The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion.
Subdivision (c). The sentence appended to subdivision (c) performs the same function and is grounded on the same reasons as the corresponding sentence added in subdivision (b).
Subdivision (d). The change here was made necessary because of the addition of defense (7) in subdivision (b).
Subdivision (e). References in this subdivision to a bill of particulars have been deleted, and the motion provided for is confined to one for a more definite statement, to be obtained only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question. With respect to preparations for trial, the party is properly relegated to the various methods of examination and discovery provided in the rules for that purpose. Slusher v. Jones (E.D.Ky. 1943) 7 Fed.Rules Serv. 12e.231, Case 5, 3 F.R.D. 168; Best Foods, Inc. v. General Mills, Inc. (D.Del. 1943) 7 Fed.Rules Serv. 12e.231, Case 7, 3 F.R.D. 275; Braden v. Callaway (E.D.Tenn. 1943) 8 Fed.Rules Serv. 12e.231, Case 1 (“. . . most courts . . . conclude that the definiteness required is only such as will be sufficient for the party to prepare responsive pleadings”). Accordingly, the reference to the 20 day time limit has also been eliminated, since the purpose of this present provision is to state a time period where the motion for a bill is made for the purpose of preparing for trial.
Rule 12(e) as originally drawn has been the subject of more judicial rulings than any other part of the rules, and has been much criticized by commentators, judges and members of the bar. See general discussion and cases cited in 1 Moore's Federal Practice (1938), Cum.Supplement §12.07, under “Page 657”; also, Holtzoff, New Federal Procedure and the Courts (1940) 35–41. And compare vote of Second Circuit Conference of Circuit and District Judges (June 1940) recommending the abolition of the bill of particulars; Sun Valley Mfg. Co. v. Mylish (E.D.Pa. 1944) 8 Fed.Rules Serv. 12e.231, Case 6 (“Our experience . . . has demonstrated not only that ‘the office of the bill of particulars is fast becoming obsolete’ . . . but that in view of the adequate discovery procedure available under the Rules, motions for bills of particulars should be abolished altogether.”); Walling v. American Steamship Co. (W.D.N.Y. 1945) 4 F.R.D. 355, 8 Fed.Rules Serv. 12e.244, Case 8 (“. . . the adoption of the rule was ill advised. It has led to confusion, duplication and delay.”) The tendency of some courts freely to grant extended bills of particulars has served to neutralize any helpful benefits derived from Rule 8, and has overlooked the intended use of the rules on depositions and discovery. The words “or to prepare for trial”—eliminated by the proposed amendment—have sometimes been seized upon as grounds for compulsory statement in the opposing pleading of all the details which the movant would have to meet at the trial. On the other hand, many courts have in effect read these words out of the rule. See Walling v. Alabama Pipe Co. (W.D.Mo. 1942) 6 Fed.Rules Serv. 12e.244, Case 7; Fleming v. Mason & Dixon Lines, Inc. (E.D.Tenn. 1941) 42 F.Supp. 230; Kellogg Co. v. National Biscuit Co. (D.N.J. 1941) 38 F.Supp. 643; Brown v. H. L. Green Co. (S.D.N.Y. 1943) 7 Fed.Rules Serv. 12e.231, Case 6; Pedersen v. Standard Accident Ins. Co. (W.D.Mo. 1945) 8 Fed.Rules Serv. 12e.231, Case 8; Bowles v. Ohse (D.Neb. 1945) 4 F.R.D. 403, 9 Fed.Rules Serv. 12e.231, Case 1; Klages v. Cohen (E.D.N.Y. 1945) 9 Fed.Rules Serv. 8a.25, Case 4; Bowles v. Lawrence (D.Mass. 1945) 8 Fed.Rules Serv. 12e.231, Case 19; McKinney Tool & Mfg. Co. v. Hoyt (N.D.Ohio 1945) 9 Fed.Rules Serv. 12e.235, Case 1; Bowles v. Jack (D.Minn. 1945) 5 F.R.D. 1, 9 Fed.Rules Serv. 12e.244, Case 9. And it has been urged from the bench that the phrase be stricken. Poole v. White (N.D.W.Va. 1941). 5 Fed.Rules Serv. 12e.231, Case 4, 2 F.R.D. 40. See also Bowles v. Gabel (W.D.Mo. 1946) 9 Fed.Rules Serv. 12e.244, Case 10 (“The courts have never favored that portion of the rules which undertook to justify a motion of this kind for the purpose of aiding counsel in preparing his case for trial.”).
Subdivision (f). This amendment affords a specific method of raising the insufficiency of a defense, a matter which has troubled some courts, although attack has been permitted in one way or another. See Dysart v. Remington-Rand, Inc. (D.Conn. 1939) 31 F.Supp. 296; Eastman Kodak Co. v. McAuley (S.D.N.Y. 1941) 4 Fed.Rules Serv. 12f.21, Case 8, 2 F.R.D. 21; Schenley Distillers Corp. v. Renken (E.D.S.C. 1940) 34 F.Supp. 678; Yale Transport Corp. v. Yellow Truck & Coach Mfg. Co. (S.D.N.Y. 1944) 3 F.R.D. 440; United States v. Turner Milk Co. (N.D.Ill. 1941) 4 Fed.Rules Serv. 12b.51, Case 3, 1 F.R.D. 643; Teiger v. Stephan Oderwald, Inc. (S.D.N.Y. 1940) 31 F.Supp. 626; Teplitsky v. Pennsylvania R. Co. (N.D.Ill. 1941) 38 F.Supp. 535; Gallagher v. Carroll (E.D.N.Y. 1939) 27 F.Supp. 568; United States v. Palmer (S.D.N.Y. 1939) 28 F.Supp. 936. And see Indemnity Ins. Co. of North America v. Pan American Airways, Inc. (S.D.N.Y. 1944) 58 F.Supp. 338; Commentary, Modes of Attacking Insufficient Defenses in the Answer (1939) 1 Fed.Rules Serv. 669 (1940) 2 Fed.Rules Serv. 640.
Subdivision (g). The change in title conforms with the companion provision in subdivision (h).
The alteration of the “except” clause requires that other than provided in subdivision (h) a party who resorts to a motion to raise defenses specified in the rule, must include in one motion all that are then available to him. Under the original rule defenses which could be raised by motion were divided into two groups which could be the subjects of two successive motions.
Subdivision (h). The addition of the phrase relating to indispensable parties is one of necessity.
Notes of Advisory Committee on Rules—1963 Amendment
This amendment conforms to the amendment of Rule 4(e). See also the Advisory Committee's Note to amended Rule 4(b).
Notes of Advisory Committee on Rules—1966 Amendment
Subdivision (b)(7). The terminology of this subdivision is changed to accord with the amendment of Rule 19. See the Advisory Committee's Note to Rule 19, as amended, especially the third paragraph therein before the caption “Subdivision (c).”
Subdivision (g). Subdivision (g) has forbidden a defendant who makes a preanswer motion under this rule from making a further motion presenting any defense or objection which was available to him at the time he made the first motion and which he could have included, but did not in fact include therein. Thus if the defendant moves before answer to dismiss the complaint for failure to state a claim, he is barred from making a further motion presenting the defense of improper venue, if that defense was available to him when he made his original motion. Amended subdivision (g) is to the same effect. This required consolidation of defenses and objections in a Rule 12 motion is salutary in that it works against piecemeal consideration of a case. For exceptions to the requirement of consolidation, see the last clause of subdivision (g), referring to new subdivision (h)(2).
Subdivision (h). The question has arisen whether an omitted defense which cannot be made the basis of a second motion may nevertheless be pleaded in the answer. Subdivision (h) called for waiver of “* * * defenses and objections which he [defendant] does not present * * * by motion * * * or, if he has made no motion, in his answer * * *.” If the clause “if he has made no motion,” was read literally, it seemed that the omitted defense was waived and could not be pleaded in the answer. On the other hand, the clause might be read as adding nothing of substance to the preceding words; in that event it appeared that a defense was not waived by reason of being omitted from the motion and might be set up in the answer. The decisions were divided. Favoring waiver, see Keefe v. Derounian, 6 F.R.D. 11 (N.D.Ill. 1946); Elbinger v. Precision Metal Workers Corp., 18 F.R.D. 467 (E.D.Wis. 1956); see also Rensing v. Turner Aviation Corp., 166 F.Supp. 790 (N.D.Ill. 1958); P. Beiersdorf & Co. v. Duke Laboratories, Inc., 10 F.R.D. 282 (S.D.N.Y. 1950); Neset v. Christensen, 92 F.Supp. 78 (E.D.N.Y. 1950). Opposing waiver, see Phillips v. Baker, 121 F.2d 752 (9th Cir. 1941); Crum v. Graham, 32 F.R.D. 173 (D.Mont. 1963) (regretfully following the Phillips case); see also Birnbaum v. Birrell, 9 F.R.D. 72 (S.D.N.Y. 1948); Johnson v. Joseph Schlitz Brewing Co., 33 F.Supp. 176 (E.D.Tenn. 1940); cf. Carter v. American Bus Lines, Inc., 22 F.R.D. 323 (D.Neb. 1958).
Amended subdivision (h)(1)(A) eliminates the ambiguity and states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)–(5)). A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of subdivision (g) forbidding successive motions.
By amended subdivision (h)(1)(B), the specified defenses, even if not waived by the operation of (A), are waived by the failure to raise them by a motion under Rule 12 or in the responsive pleading or any amendment thereof to which the party is entitled as a matter of course. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading.
Since the language of the subdivisions is made clear, the party is put on fair notice of the effect of his actions and omissions and can guard himself against unintended waiver. It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of jurisdiction over the subject matter (see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivision (h)(2) and (3).
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1993 Amendment
Subdivision (a) is divided into paragraphs for greater clarity, and paragraph (1)(B) is added to reflect amendments to Rule 4. Consistent with Rule 4(d)(3), a defendant that timely waives service is allowed 60 days from the date the request was mailed in which to respond to the complaint, with an additional 30 days afforded if the request was sent out of the country. Service is timely waived if the waiver is returned within the time specified in the request (30 days after the request was mailed, or 60 days if mailed out of the country) and before being formally served with process. Sometimes a plaintiff may attempt to serve a defendant with process while also sending the defendant a request for waiver of service; if the defendant executes the waiver of service within the time specified and before being served with process, it should have the longer time to respond afforded by waiving service.
The date of sending the request is to be inserted by the plaintiff on the face of the request for waiver and on the waiver itself. This date is used to measure the return day for the waiver form, so that the plaintiff can know on a day certain whether formal service of process will be necessary; it is also a useful date to measure the time for answer when service is waived. The defendant who returns the waiver is given additional time for answer in order to assure that it loses nothing by waiving service of process.
Committee Notes on Rules—2000 Amendment
Rule 12(a)(3)(B) is added to complement the addition of Rule 4(i)(2)(B). The purposes that underlie the requirement that service be made on the United States in an action that asserts individual liability of a United States officer or employee for acts occurring in connection with the performance of duties on behalf of the United States also require that the time to answer be extended to 60 days. Time is needed for the United States to determine whether to provide representation to the defendant officer or employee. If the United States provides representation, the need for an extended answer period is the same as in actions against the United States, a United States agency, or a United States officer sued in an official capacity.
An action against a former officer or employee of the United States is covered by subparagraph (3)(B) in the same way as an action against a present officer or employee. Termination of the relationship between the individual defendant and the United States does not reduce the need for additional time to answer.
GAP Report. No changes are recommended for Rule 12 as published.
Committee Notes on Rules—2007 Amendment
The language of Rule 12 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
Former Rule 12(a)(4)(A) referred to an order that postpones disposition of a motion “until the trial on the merits.” Rule 12(a)(4) now refers to postponing disposition “until trial.” The new expression avoids the ambiguity that inheres in “trial on the merits,” which may become confusing when there is a separate trial of a single issue or another event different from a single all-encompassing trial.
Changes Made After Publication and Comment. See Note to Rule 1, supra.
Committee Notes on Rules—2009 Amendment
The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the Note to Rule 6.