Defenses and Objections: When and

How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing (a) Time to Serve a Responsive Pleading. (1) In General. (A) The United States must file an answer to a complaint within 60 days after the complaint. served with being the (B) If answer contains a counterclaim, offset, or plea of fraud, a party must file an answer to the counterclaim, and may file a reply to the offset or plea of fraud, within 21 days after being served with the answer. (C) If a reply to an answer or a responsive pleading to a third-party complaint or answer is ordered by the court, a party must file the reply or responsive pleading within 21 days after being served with the order, unless the order specifies a different time. (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. [Not used.] (3) United States Officers or Employees Sued in an Individual Capacity. [Not used.] (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule or RCFC 56 alters these periods as follows: (A) if the court denies the motion, in whole or in part, or postpones its disposition until trial, or if a party withdraws the motion, the responsive pleading must be filed by the later of: (i) 14 days after notice of the court’s the motion’s action withdrawal; or or (ii) the date the response otherwise would have been due. 21 RCFC 12 definite (B) if the court grants a motion for a more the responsive pleading must be served within 14 days after the more definite statement is served. statement, (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue [not used]; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under RCFC 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. (c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under RCFC 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under RCFC 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or RCFC 12 cont. 22 within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, impertinent, or immaterial, scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) Joining Motions. (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule. (2) Limitation on Further Motions. Except as provided in RCFC 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. (h) Waiving and Preserving Certain Defenses. (1) When Some Are Waived. A party waives any defense listed in RCFC 12(b)(2)-(5) by: (A) omitting it from a motion in the circumstances described in RCFC 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; or (ii) include it responsive in a pleading or in an amendment allowed by RCFC 15(a)(1) as a matter of course. (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by RCFC 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under RCFC 7(a); (B) by a motion under RCFC 12(c); or (C) at trial. (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter the court must dismiss the action. jurisdiction, (i) Hearing Before Trial. If a party so moves, any defense listed in RCFC 12(b)(1)-(7)— whether made in a pleading or by motion— and a motion under RCFC 12(c) must be heard and decided before trial unless the court orders a deferral until trial. (As revised and reissued May 1, 2002; as amended Nov. 3, 2008, Jan. 11, 2010.) Rules Committee Notes 2002 Revision To more closely parallel FRCP 12, subdivisions (b) and (h) of the court’s rule have been enlarged by adding the defense of “insufficiency of service of process” and the defense of “failure to join a party indispensable under RCFC 19.” Further, as an aid to practitioners, most of whom are familiar with practice in the district courts, the enumeration of defenses in subdivision (b) has been brought into conformity with the corresponding subdivision of the FRCP. Finally, subdivision (i) (“Suspension of Discovery”) has been deleted. That subdivision is not part of the comparable FRCP, and its subject matter is more appropriately dealt with as a case management matter. 2008 Amendment The language of RCFC 12 has been amended to conform to the general restyling of the FRCP. In addition, former paragraph (a)(1) (the text of which is unique to our court) has been reworded to provide that while a reply to an answer containing a counterclaim is mandatory, a reply to an answer containing an offset or a plea of fraud is not (unless ordered by the court). This rewording, although a departure from past practice, was deemed advisable in order to avoid the consequences of an unintended admission caused by a party’s inadvertent failure to respond to a defense of offset or plea of fraud that was not clearly designated as such in the answer. 2010 Amendment The time periods of 10 and 20 days formerly set forth in RCFC 12 have been changed to 14 and 21 days, respectively, in accordance with the corresponding changes to FRCP 12 that became effective December 1, 2009.