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§ RULE 12. DEFENSES AND OBJECTIONS--WHEN AND HOW PRESENTED--BY PLEADING OR MOTION--MOTION FOR JUDGMENT ON PLEADINGS

Codes > Rules of Civil Procedure for the Nevada District Courts > III. Pleadings > RULE 12.

RULE 12. DEFENSES AND OBJECTIONS--WHEN AND HOW PRESENTED--BY PLEADING OR MOTION--MOTION FOR JUDGMENT ON PLEADINGS

(a) When Presented.

(1) A defendant shall serve an answer within 20 days after being served with the summons and complaint, unless otherwise provided by statute when service of process is made pursuant to Rule 4(e)(3).

(2) A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after being served. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs.

(3) The State of Nevada or any political subdivision thereof, and any officer, employee, board or commission member of the State of Nevada or political subdivision, and any state legislator shall file an answer or other responsive pleading within 45 days after their respective dates of service.

(4) The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court:

(A) if the court denies the motion or postpones its disposition until the trial on the merits, a responsive pleading shall be served within 10 days after notice of the court's action;

(B) if the court grants a motion for a more definite statement, a responsive pleading shall be served within 10 days after service of the more definite statement.

ADVISORY COMMITTEE'S NOTE

The federal rule, allowing 20 days to answer, is adopted in preference to the 10-20-30 day provisions of present state law. This also applies to answer or default after service by publication. The first sentence of the federal rule is revised to provide for answer within 20 days unless otherwise provided by statute, rather than unless the court directs otherwise, and to refer specifically to subsec. (3) of Rule 4(e). When service is made pursuant to a special statute under Rule 4(e)(3), and that statute prescribes the time within which to answer, such provision will apply rather than the 20 day rule. However, the general statutes governing service are superseded in their entirety by Rule 4, and the 20 day period applies. The fourth sentence of the federal rule, pertaining to answer by the United States, is deleted.

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process, (5) failure to state a claim upon which relief can be granted, (6) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

As amended, eff. Sept. 27, 1971.

ADVISORY COMMITTEE'S NOTE

The federal rule is revised so that the defense of lack of jurisdiction over the subject matter may be made by motion, only if it appears on the face of the pleading. This preserves the rule of McKim v. District Court, 33 Nev. 33, 110 Pac. 4 (1910). The federal defense of improper venue is deleted, since improper venue is not a defense under state practice, but is a ground for change of venue. Practice as to change of venue will not be affected by this rule. Motion therefor may be made, or will be waived, apart from the requirements of Rule 12(h). The federal rule is further revised to provide that the defenses of lack of jurisdiction over the person, of insufficiency of process, and of insufficiency of service of process, are waived if joined with one or more defenses other than those defenses, or by further pleading after denial of such defenses. This, in substance, is intended to retain existing practice on motions to quash, and permits application for a writ of prohibition in lieu of trial and appeal. Cf. NCL § 8573. In 1971, the federal amendment, effective July 1, 1966, to substitute “failure to join a party under Rule 19” for “failure to join an indispensable party” was adopted.

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

(d) Preliminary Hearings. The defenses specifically enumerated (1)-(6) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

ADVISORY COMMITTEE'S NOTE

Technical revision of the federal rule is made to conform numbering to the revision of Rule 12(b).

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

As amended, eff. Sept. 27, 1971.

ADVISORY COMMITTEE'S NOTE

In 1971, the federal amendment, effective July 1, 1966, was incorporated in the Nevada rule.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.