The Pre-Answer Motion

Rule 12 Motions to Dismiss

The Pre-Answer Motion

A defendant served with a complaint must respond, and the first choice is between answering and moving to dismiss. Most defendants answer. A defendant with a preliminary objection to the suit may move to dismiss instead.¹ Rule 12(b) frames the choice: every defense to a claim for relief in any pleading must be asserted in the responsive pleading, but a party may assert seven listed defenses by motion.²

An answer and a motion are different kinds of papers. An answer is a pleading: it admits or denies the complaint's factual allegations, sets out defenses, and asserts any counterclaims or crossclaims the defendant holds.³ A motion is not a pleading. Rule 7 provides for the two separately; pleadings state the parties' positions on the claim, while a motion is a direct application to the court for an order.⁴ A Rule 12(b) motion therefore asks the court for an order dismissing the case and leaves the admitting and denying to the answer.

The word may makes the motion optional. A defendant who prefers can raise every listed defense in the answer and never file a motion.⁵ Many defendants use both papers in sequence: they lead with a Rule 12 motion and, if it does not win dismissal of the entire case, follow with an answer.⁶ Even a motion that fails to end the case can delay it, because it may force the plaintiff to serve the complaint again or file the case in a different court.⁷

The listed defenses share one feature: a court can test each of them before anyone decides what happened. Rule 12(b) exists so that the defendant can raise legal, rather than factual, defenses before the factual merits are addressed through the answer. It also permits alternative challenges, which common law pleading did not allow; there the defendant, like the plaintiff, had to choose a single theory of the case.⁸ The list includes lack of personal or subject-matter jurisdiction, improper venue, insufficient process, failure to state a claim, and failure to join a party who must be joined.⁹

Several of the defenses attack the procedure by which the plaintiff started the action. Insufficient service of process under Rule 12(b)(5) attacks the manner in which the complaint was served, and failure to join a necessary party under Rule 12(b)(7) asserts a defect in the scope of the suit as the plaintiff framed it. These defects are generally curable. They do not require dismissal of the suit, but they must be remedied before the case proceeds; if service was insufficient, the court will order proper service before going forward.¹⁰

Moving first also has tactical value. A defendant who moves to dismiss under Rule 12(b) need not answer until the court decides the motion, and a defendant who wins may never have to answer at all. That matters because an answer can force the defendant to admit damaging allegations or to undertake substantial factual investigation.¹¹ The delay lasts only while the motion is pending. 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.¹² The motion has a timing limit as well: it must be made before pleading if a responsive pleading is allowed.¹³

The pre-answer motion reaches only the defenses on Rule 12(b)'s list, and failure to state a claim shows what kind of defense that is.¹⁴ On that motion the court asks whether the plaintiff's allegations, even if all true, would be legally sufficient to state a claim on which relief may be granted.¹⁵ The defendant contests no factual allegation. A denial of what the complaint alleges is a different kind of response, because it asks the court to find facts. That response belongs in the answer, which must admit or deny each allegation.¹⁶

Only the third. The first argument denies the plaintiff's account and responds to the allegations themselves, so it goes in the answer. The release is new matter outside the complaint, an affirmative defense, and it too belongs in the answer.¹⁷ The service objection is a listed defense: insufficient service of process attacks the manner in which the complaint was served, and the usual result is an order for proper service, not the end of the suit.¹⁸ Students often ask whether a defense is strong when the right first question is whether it is listed. A strong defense that is not among the seven cannot be asserted by pre-answer motion.

The same options belong to every party defending against a claim, not only to the original defendant. Rule 12(b) speaks of defenses to a claim for relief in any pleading, so a party responding to a counterclaim, a crossclaim, or a third-party complaint chooses between a pre-answer motion and an answer exactly as the original defendant does.¹⁹ Third-party defendants use the motion in practice; one casebook example is a third-party defendant's motion to dismiss for lack of personal jurisdiction.²⁰

This first decision also drives the topics that follow. Serving a motion changes the time to respond. A defendant who moves before answering must include in that motion all the Rule 12(b) defenses then available to him, and he generally cannot make a second pre-answer motion on them.²¹ A defendant who moves incompletely or who answers without raising certain defenses can lose them through waiver. The title of Rule 12 itself lists these subjects together with the pretrial hearing of defenses.²²