The Massachusetts motion to dismiss: ten grounds, and three you will not find in the federal rule

Massachusetts Rule 12 follows the federal pattern for seven grounds and then adds three of its own. Two of the added grounds are traps for lawyers who assume the federal list is complete, because all three are on the waiver list: omit them from a first motion and they are gone.

The ten grounds

Mass. R. Civ. P. 12(b):

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; (8) Misnomer of a party; (9) Pendency of a prior action in a court of the Commonwealth; (10) Improper amount of damages in the Superior Court as set forth in G. L. c. 212, §3 or in the District Court as set forth in G. L. c. 218, §19.

Grounds (1) through (7) will be familiar. The last three are the Massachusetts additions.

(8) Misnomer of a party. A defendant named incorrectly can raise it here rather than through an amendment fight.

(9) Pendency of a prior action in a court of the Commonwealth. Note the limit — a prior action, and one in a Massachusetts court. A parallel federal case or an out-of-state case does not fit this ground.

(10) Improper amount of damages. This is the jurisdictional-threshold ground, keyed to the statutory amounts for the Superior Court and the District Court. It is the ground most likely to be forgotten, because in most states the question is handled by transfer rather than by motion.

The answer clock

Rule 12(a):

(1) After service upon him of any pleading requiring a responsive pleading, a party shall serve such responsive pleading within 20 days unless otherwise directed by order of the court. (2) The service of a motion permitted under this rule alters this period of time as follows, unless a different time is fixed by order of the court: (i) 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; (ii) 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.

Twenty days to respond; ten days after notice of a denial. Both are short by national standards, and the ten days runs from notice of the court's action rather than from entry.

Consolidation, and what omission costs

Rule 12(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 him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he 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.

So the rule is: file one motion with everything in it. A second motion raising a ground you had available and left out is not permitted.

Rule 12(h)(1) then says which grounds actually die:

Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, misnomer of a party, pendency of a prior action, or improper amount of damages 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.

Seven waivable defences — the familiar four, plus all three Massachusetts additions.

Two routes to waiver, and route (B) matters as much as route (A): a defence is lost if it is neither raised by motion nor included in a responsive pleading or an amendment as of course under Rule 15(a).

So a defendant who answers without pleading, say, misnomer has waived it just as surely as one who filed a motion and left it out.

Conversion

Rule 12(b) closes with the conversion provision:

If, on any motion asserting the defense numbered (6), 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.

And a Massachusetts-specific pleading requirement in the same subsection:

A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based.

That applies whether the defence appears in a motion or in an answer. A bare recital of "failure to state a claim" among the affirmative defences does not comply.

How Massachusetts compares

A short checklist

1. Work through all ten grounds, not the federal seven. Three of the Massachusetts additions are waivable.
2. File one motion with everything in it. Rule 12(g) bars a later motion on an omitted ground.
3. If you answer instead of moving, plead every waivable ground in the answer — omission there waives just as effectively.
4. Check the amount in controversy against the Superior Court and District Court thresholds. Ground (10) exists for a reason and is easily forgotten.
5. Check for a prior Massachusetts action before answering. Ground (9) reaches only prior actions in a court of the Commonwealth.
6. If you raise failure to state a claim, include a short, concise statement of the grounds — in the motion, the answer, or the reply.
7. After a denial you have 10 days from notice of the court's action, not from entry.
8. Decide deliberately about attaching material. Anything outside the pleadings converts a (6) motion into summary judgment under Rule 56.

Where these rules live

• Mass. R. Civ. P. 6 — Time
• Mass. R. Civ. P. 8 — General Rules of Pleading
• Mass. R. Civ. P. 12 — Defenses and Objections
• Mass. R. Civ. P. 56 — Summary Judgment

This page explains what the rule says. It isn't legal advice, and the statutory amount thresholds in G. L. c. 212, § 3 and c. 218, § 19 are outside this site's Massachusetts corpus.