NOTES TO RULE 12
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; July 1, 1966; Aug. 1, 1987; Dec. 1, 1993)
Notes of Advisory Committee on Rules.
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; NYCPA (1937) § 263; NYRCP (1937) Rules 109--111.
2. USC, Title 28, former § 763 (now § 507) (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 USC, 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 NYCPA (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); NYCPA (1937) §§ 277--280; NYRCP (1937) Rules 106--112; English Rules Under the Judicature Act (The Annual Practice, 1937) O 25, rr 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, rr 1--4; 1 Miss Code Ann (1930) §§ 378, 379. Compare former Equity Rule 29 (Defenses--How Presented); USC, Title 28, former § 45 (District Courts; practice and procedure in certain cases under the interstate commerce laws). USC, 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); NYRCP (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, rr 7, 7a, 7b, 8; 4 Mont Rev Codes Ann (1935) §§ 9166, 9167; NYCPA (1937) § 247; NYRCP (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; NM 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; NYCPA (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 USC, Title 28, former § 80 (Dismissal or remand) (of action over which district court lacks jurisdiction), while USC, Title 28, former § 399 (Amendments to show diverse citizenship) is continued by Rule 15.
Notes of Advisory Committee on 1946 amendments to Rules.
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. ED 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, CCA 2d, 1942, 129 F2d 594, cert den, 1942, 317 US 686, 63 S Ct 258; Boro Hall Corp. v General Motors Corp. CCA 2d, 1942, 124 F2d 822, cert den, 1943, 317 US 695, 63 S Ct 436. See also Kithcart v Metropolitan Life Ins. Co. CCA 8th, 1945, 150 F2d 997, affg 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. CCA 2d, 1942, 124 F2d 822, cert den 1943, 317 US 695, 63 S Ct 436; Gallup v Caldwell, CCA 3d, 1941, 120 F2d 90; Central Mexico Light & Power Co. v Munch, CCA 2d, 1940, 116 F2d 85; National Labor Relations Board v Montgomery Ward & Co. App DC 1944, 79 US App DC 200, 144 F2d 528, cert den 1944, [323 US 774, 89 L Ed 619,] 65 S Ct 134; Urquhart v American-La France Foamite Corp. App DC 1944, 79 US App DC 219, 144 F2d 542; Samara v United States, CCA 2d, 1942, 129 F2d 594; Cohen v American Window Glass Co. CCA 2d, 1942, 126 F2d 111; Sperry Products Inc. v Association of American Railroads, CCA 2d, 1942, 132 F2d 408; Joint Council Dining Car Employees Local 370 v Delaware, Lackawanna and Western R. Co. CCA 2d, 1946, 157 F2d 417; Weeks v Bareco Oil Co. CCA 7th, 1941, 125 F2d 84; Carroll v Morrison Hotel Corp. CCA 7th, 1945, 149 F2d 404; Victory v Manning, CCA 3d, 1942, 128 F2d 415; Locals No. 1470, No. 1469, and No. 1512 of International Longshoremen's Association v Southern Pacific Co. CCA 5th, 1942, 131 F2d 605; Lucking v Delano, CCA 6th, 1942, 129 F2d 283; San Francisco Lodge No. 68 of International Association of Machinists v Forrestal, ND Cal 1944, 58 F Supp 466; Benson v Export Equipment Corp., N Mex 1945, 164 P2d 380, construing New Mexico rule identical with Rule 12(b)(6); F. E. Myers & Bros. Co. v Gould Pumps, Inc. WD NY 1946, 9 Fed Rules Serv 12b, 33 Case 2, 5 FRD 132. Cf. Kohler v Jacobs, CCA 5th, 1943, 138 F2d 440; Cohen v United States, CCA 8th, 1942, 129 F2d 733.
Under group (2) are: Sparks v England, CCA 8th, 1940, 113 F2d 579; Continental Collieries, Inc. v Shober, CCA 3d, 1942, 130 F2d 631; Downey v Palmer, CCA 2d, 1940, 114 F2d 116; DeLoach v Crowley's Inc. CCA 5th, 1942, 128 F2d 378; Leimer v State Mutual Life Assurance Co. of Worcester, Mass. CCA 8th, 1940, 108 F2d 302; Rossiter v Vogel, CCA 2d, 1943, 134 F2d 908, compare s. c., CCA 2d, 1945, 148 F2d 292; Karl Kiefer Machine Co. v United States Bottlers Machinery Co. CCA 7th, 1940, 113 F2d 356; Chicago Metallic Mfg. Co. v Edward Katzinger Co. CCA 7th, 1941, 123 F2d 518; Louisiana Farmers' Protective Union, Inc. v Great Atlantic & Pacific Tea Co. of America, Inc. CCA 8th, 1942, 131 F2d 419; Publicity Bldg. Realty Corp. v Hannegan, CCA 8th, 1943, 139 F2d 583; Dioguardi v Durning, CCA 2d, 1944, 139 F2d 774; Package Closure Corp. v Sealright Co., Inc. CCA 2d, 1944, 141 F2d 972; Tahir Erk v Glenn L. Martin Co. CCA 4th, 1941, 116 F2d 865; Bell v Preferred Life Assurance Society of Montgomery, Ala, 1943, 320 US 238, 64 S Ct 5.
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, ED Ky 1943, 7 Fed Rules Serv 12e.231, Case 5, 3 FRD 168; Best Foods, Inc. v General Mills, Inc. D Del 1943, 7 Fed Rules Serv 12e.231, Case 7, 3 FRD 275; Braden v Callaway, ED 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, ED 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. WD NY 1945, 4 FRD 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. WD Mo 1942, 3 FRD 159, 6 Fed Rules Serv 12e.244, Case 7; Fleming v Mason & Dixon Lines, Inc. ED Tenn 1941, 42 F Supp 230; Kellogg Co. v National Biscuit Co. D NJ 1941, 38 F Supp 643; Brown v H. L. Green Co. SD NY 1943, 7 Fed Rules Serv 12e.231, Case 6; Pedersen v Standard Accident Ins. Co. WD Mo 1945, 8 Fed Rules Serv 12e.231, Case 8; Bowles v Ohse, D Neb 1945, 4 FRD 403, 9 Fed Rules Serv 12e.231, Case 1; Klages v Cohen, ED NY 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 Fed Rules Serv 12e.231, Case 4, 2 FRD 40. See also Bowles v Gabel, WD 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, SD NY 1941, 4 Fed Rules Serv 12f.21, Case 8, 2 FRD 21; Schenley Distillers Corp. v Renken, ED SC 1940, 34 F Supp 678; Yale Transport Corp. v Yellow Truck & Coach Mfg. Co. SD NY 1944, 3 FRD 440; United States v Turner Milk Co. ND Ill 1941, 4 Fed Rules Serv 12b.51, Case 3, 1 FRD 643; Teiger v Stephan Oderwald, Inc. SD NY 1940, 31 F Supp 626; Teplitsky v Pennsylvania R. Co. ND Ill 1941, 38 F Supp 535; Gallagher v Carroll, ED NY 1939, 27 F Supp 568; United States v Palmer, SD NY 1939, 28 F Supp 936. And see Indemnity Ins. Co. of North America v Pan American Airways, Inc. SD NY 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 1963 amendments to Rules.
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 1966 amendments to Rules.
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 FRD 11 (ND Ill 1946); Elbinger v Precision Metal Workers Corp. 18 FRD 467 (ED Wis 1956); see also Rensing v Turner Aviation Corp. 166 F Supp 790 (ND Ill 1958); P. Beiersdorf & Co. v Duke Laboratories, Inc. 10 FRD 282 (SD NY 1950); Neset v Christensen, 92 F Supp 78 (ED NY 1950). Opposing waiver, see Phillips v Baker, 121 F2d 752 (9th Cir 1941); Crum v Graham, 32 FRD 173 (D Mont 1963) (regretfully following the Phillips case); see also Birnbaum v Birrell, 9 FRD 72 (SD NY 1948); Johnson v Joseph Schlitz Brewing Co. 33 F Supp 176 (ED Tenn 1940); cf. Carter v American Bus Lines, Inc. 22 FRD 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 subdivisions (h)(2) and (3).
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on 1993 amendments to Rules.
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.