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

Codes > Delaware Superior Court Rules of Civil Procedure > 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 in actions other than certiorari, ditch returns, mechanics' liens, appeals under Rule 3(c), and actions in which writs of attachment and capias are used. A defendant shall serve an answer within 20 days after service of process, complaint and affidavit, if any, upon that defendant, unless the Court directs otherwise when service of process is made pursuant to Rule 4(f)(1)(VI). If a defendant appears before service is made upon that defendant, that defendant shall serve an answer within 20 days after appearance. If the plaintiff has made a specific notation upon the face of the complaint under Rule 3(b) requiring the defendant to answer any or all allegations of the complaint by affidavit and in actions of scire facias on mechanics' liens, the defendant shall, not later than the time for serving the answer, serve either an affidavit of defense in conformity with the statute or a motion that judgment be refused notwithstanding the plaintiff's complaint or, in mechanics' liens, notwithstanding the statement of claim or the complaint. A party served with a pleading stating a cross-claim against that party shall serve an answer thereto within 20 days after the service upon that party. 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. The service of a motion permitted under this Rule alters these periods as follows, unless a different time is fixed by order of the Court:

(1) If the Court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the Court's action.

(2) If the Court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

(3) If, under 10 Del. C. § 3901, a party serving a cross-claim, counterclaim or third-party claim could require that any or all allegations of the cross-claim, counterclaim or third-party claim be answered by affidavit, if such claim had been the subject of a separate action, the party may make a specific notation upon the face of such pleading pursuant to Rule 3(b) that any or all allegations of that pleading must be answered by affidavit. If such a notation is made, the party served shall, within 20 days after service, either move that judgment be refused notwithstanding the cross-claim, counterclaim or third-party claim, or serve with the pleading an affidavit of defense in conformity with the statute.

(aa1) Certiorari; Exceptions or Causes of Diminution; When Presented. On the return to a certiorari, the plaintiff in error shall serve exceptions or causes of diminution within 10 days after the filing of the record.

(aa2) Objections to Ditch Returns; When Presented. Objections to ditch returns shall be filed within 10 days after the filing of the return and supported by affidavit, where the objections are based upon facts not appearing from the record.

(aa3) Exceptions to Mechanics' Liens; When Filed. After a statement of claim has been filed, exceptions thereto may be filed at any time not later than 20 days after service.

(aa4) When Presented in Appeals Under Rule 3(c). When appellant is the party having the duty of filing the complaint or other first pleading in an appeal under Rule 3(c), the appellee shall serve appellee's pleading within 20 days after service of process on appeal, or if the appellee has not been served, within 40 days after date of process.

(aa5) Answers in attachments; when filed. A defendant shall serve an answer (and, if the complaint contains a specific notation under Rule 3(b) requiring the defendant to answer any or all allegations of the complaint by affidavit, an affidavit of defense) within 20 days after appearance.

(aa6) Answers in capias; when filed. Defendant shall serve an answer (and, if the complaint contains a specific notation under Rule 3(b) requiring the defendant to answer any or all allegations of the complaint by affidavit, an affidavit of defense) within 20 days after discharge on bail.

(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) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) 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 an 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 (6) to dismiss for failure of the pleadings 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.

(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)-(7) 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.

(e) Motion for a 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 the 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.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, 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.