Rule 12. Defenses and objections; When and how presented; by pleading or motion; motion for judgment on pleading. - North Carolina Statutes

Rule 12. Defenses andobjections; When and how presented; by pleading or motion; motion for judgmenton pleading.

(a)        (1) When Presented.– A defendant shall serve his answer within 30 days after service of thesummons and complaint upon him. A party served with a pleading stating acrossclaim against him shall serve an answer thereto within 30 days afterservice upon him. The plaintiff shall serve his reply to a counterclaim in theanswer within 30 days after service of the answer or, if a reply is ordered bythe court, within 30 days after service of the order, unless the orderotherwise directs. Service of a motion permitted under this rule alters theseperiods of time as follows, unless a different time is fixed by order of thecourt:

a.         The responsive pleadingshall be served within 20 days after notice of the court's action in ruling onthe motion or postponing its disposition until the trial on the merits;

b.         If the court grantsa motion for a more definite statement, the responsive pleading shall be servedwithin 20 days after service of the more definite statement.

(2)        Cases Removed toUnited States District Court. – Upon the filing in a district court of theUnited States of a petition for the removal of a civil action or proceedingfrom a court in this State and the filing of a copy of the petition in theState court, the State court shall proceed no further therein unless and untilthe case is remanded. If it shall be finally determined in the United Statescourts that the action or proceeding was not removable or was improperlyremoved, or for other reason should be remanded, and a final order is enteredremanding the action or proceeding to the State court, the defendant ordefendants, or any other party who would have been permitted or required tofile a pleading  had the proceedings to remove not been instituted, shall have30 days after the filing in such State court of a certified copy of the orderof remand to file motions and to answer or otherwise plead.

(b)        How Presented. –Every defense, in law or fact, to a claim for relief in any pleading, whether aclaim, counterclaim, crossclaim, or third‑party claim, shall be assertedin the responsive pleading thereto if one is required, except that thefollowing defenses may at  the option of the pleader be made by motion:

(1)        Lack of jurisdictionover the subject matter,

(2)        Lack of jurisdictionover the person,

(3)        Improper venue ordivision,

(4)        Insufficiency ofprocess,

(5)        Insufficiency ofservice of process,

(6)        Failure to state aclaim upon which relief can be granted,

(7)        Failure to join anecessary party.

A motion making any of thesedefenses shall be made before pleading if a further pleading is permitted. Theconsequences of failure to make such a motion shall be as provided in sections(g) and (h). No defense or objection is waived by being joined with one or moreother defenses or objections in a responsive pleading or motion. Obtaining anextension of time within which to answer or otherwise plead shall notconstitute a waiver of any defense herein set forth. If a pleading sets forth aclaim for relief to which the adverse party is not required to serve aresponsive pleading, he may assert at the trial any defense in law or fact tothat claim for relief. If, on a motion asserting the defense numbered (6), todismiss for failure of the pleading to state a claim upon which relief can begranted, matters outside the pleading are presented to and not excluded by thecourt, the motion shall be treated as one for summary judgment and disposed of asprovided in Rule 56, and all parties shall be given reasonable opportunity topresent all material made pertinent to such a motion by Rule 56.

(c)        Motion for judgmenton the pleadings. – After the pleadings are closed but within such time as notto delay the trial, any party may move for judgment on the pleadings. If, on amotion for  judgment on the pleadings, matters outside the pleadings arepresented to and not excluded by the court, the motion shall be treated as onefor summary judgment and disposed of as provided in Rule 56, and all partiesshall be given reasonable opportunity to present all material made pertinent tosuch a motion by Rule 56.

(d)        Preliminaryhearings. – The defenses specifically enumerated (1) through (7) in section (b)of this rule, whether made in a pleading or by motion, and the motion forjudgment on the pleadings mentioned in section (c) of this rule shall be heardand determined before trial on application of any party, unless the judgeorders that the hearing and determination thereof be deferred until the trial.

(e)        Motion for moredefinite statement. – If a pleading to which a responsive pleading is permittedis so vague or ambiguous that a party cannot reasonably be required to frame aresponsive pleading, he may move for a more definite statement beforeinterposing his responsive pleading. The motion shall point out the defectscomplained of and the details desired. If the motion is granted and the orderof the judge is not obeyed within 20 days after notice of the order or withinsuch other time as the judge may fix, the judge may strike the pleading towhich the motion was directed or make such orders as he deems just.

(f)         Motion to strike.– Upon motion made by a party before responding to a pleading or, if noresponsive pleading is permitted by these rules, upon motion made by a partywithin 30 days after the service of the pleading upon him or upon the judge'sown initiative at any time, the judge may order stricken from any pleading anyinsufficient defense or any redundant, irrelevant, immaterial, impertinent, orscandalous matter.

(g)        Consolidation ofdefenses in motion. – A party who makes a motion under this rule may join withit any other motions herein provided for and then available to him. If a partymakes a motion under this rule but omits therefrom any defense or objectionthen available to him which this rule permits to be raised by motion, he shallnot thereafter make a motion based on the defense or objection so omitted,except a motion as provided in section (h)(2) hereof on any of the groundsthere stated.

(h)        Waiver orpreservation of certain defenses. –

(1)        A defense of lack ofjurisdiction over the person, improper venue, insufficiency of process, orinsufficiency of service  of process is waived (i) if omitted from a motion inthe circumstances described in section (g), or (ii) if it is neither made bymotion under this rule nor included in a responsive pleading or an amendmentthereof permitted by Rule 15(a) to be made as a matter of course.

(2)        A defense of failureto state a claim upon which relief can be granted, a defense of failure to joina necessary party, and an objection of failure to state a legal defense to aclaim may be made in any pleading permitted or ordered under  Rule 7(a), or bymotion for judgment on the pleadings, or at the trial on the merits.

(3)        Whenever it appearsby suggestion of the parties or otherwise that the court lacks jurisdiction ofthe subject matter, the court shall dismiss the action. (1967,c. 954, s. 1; 1971, c. 1236; 1975, c. 76, s. 2.)