Concept
Responsive Pleadings and Timing
Time to serve a responsive pleading
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:
- 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
- An answer to a counterclaim or crossclaim, due within 21 days after the party is served with the pleading that states it.6
- 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.