Answering a South Carolina summons: thirty days, and five defenses you lose by not raising

Thirty days. That is the headline number in South Carolina, and it is the same whether the claim is for a hundred dollars or a million.

What decides most cases procedurally, though, is not the deadline. It is Rule 12(h)(1), which deletes five defenses if they are not raised the first time you speak.

The thirty days

SCRCP 12(a):

A defendant shall serve his answer within 30 days after the service of the complaint upon him, unless the Court directs otherwise when service of process is made pursuant to Rule 4(e) … A party served with a pleading stating a cross-claim against him shall serve an answer thereto within 30 days after the service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within 30 days after service of the answer or, if a reply is ordered by the court, within 30 days after service of the order, unless the order otherwise directs.

Thirty days across the board — answer, answer to a cross-claim, reply to a counterclaim.

Note that the deadline runs from service, not from filing and not from when you read it.

Filing a motion buys you fifteen days, not thirty

The rest of 12(a) resets the clock if you move rather than answer:

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: (1) if the Court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 15 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 15 days after the service of the more definite statement, and a responsive pleading, if necessary, shall be served within 15 days after notice of the court's action on a motion to strike.

So a denied motion does not restore the full thirty days. You get fifteen.

The eight defenses that may go by motion

SCRCP 12(b) requires every defense to go in the responsive pleading, with an option:

Every defense, in law or fact, to a cause of action in any pleading … 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 facts sufficient to constitute a cause of action, (7) failure to join a party under Rule 19, (8) another action is pending between the same parties for the same claim. 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.

Note (6): South Carolina's formulation is "failure to state facts sufficient to constitute a cause of action" — fact pleading, not the federal "claim upon which relief can be granted."

And note (8), which has no federal counterpart: another action pending between the same parties for the same claim is an enumerated defense here.

If evidence outside the pleadings comes in on a (6) motion, the rule converts it:

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

The waiver rule

SCRCP 12(h)(1) is the provision to read before filing anything:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or that another action is pending between the same parties for the same claim 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.

And 12(g) explains what "the circumstances described in subdivision (g)" means:

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: file a motion raising one of the eight, leave another out, and the omitted one is gone.

12(h)(2) keeps three alive:

A defense of failure to state a cause of action 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.

And 12(h)(3) puts subject matter jurisdiction beyond waiver entirely:

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.

The other tools in Rule 12

A more definite statement — 12(e), available where a pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." The motion "shall point out the defects complained of and the details desired", and if the resulting order is not obeyed within 15 days the court "may strike the pleading to which the motion was directed or make such order as it deems just."

A motion to strike — 12(f), for "any insufficient defense or any redundant, immaterial, impertinent or scandalous matter", made before responding or, where no responsive pleading is required, within 30 days after service — or by the court on its own initiative at any time.

Judgment on the pleadings — 12(c), available "after the pleadings are closed but within such time as not to delay the trial", and subject to the same conversion-to-summary-judgment rule if outside matter comes in.

Preliminary hearings — 12(d): the eight enumerated defenses, judgment on the pleadings, and summary judgment "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." A party can insist on getting these decided early.

How South Carolina compares

A short checklist

1. Diarise thirty days from service, not from the date on the complaint.
2. Decide every threshold objection before you file anything. Rule 12(g) and (h)(1) waive whatever you leave out of your first motion.
3. Raise jurisdiction over the person, venue, process, service, and another-action-pending together — those five are the waivable set.
4. If you move instead of answering, remember a denial gives you only fifteen days to serve the responsive pleading.
5. Consider (6) on a thin complaint — South Carolina requires facts sufficient to constitute a cause of action.
6. Watch for conversion to summary judgment if anything outside the pleadings goes in on a (6) motion or a motion for judgment on the pleadings.
7. Use 12(e) rather than guessing at a vague complaint, and point out the defects and the details you want.
8. Ask for a preliminary hearing under 12(d) if you want these decided before trial rather than at it.
9. Subject matter jurisdiction is never lost — it can be raised at any time, and the court must dismiss on its own.

Where these rules live

• SCRCP 7 — Pleadings allowed; forms of motions
• SCRCP 12 — Defenses and objections
• SCRCP 15 — Amended and supplemental pleadings
• SCRCP 19 — Joinder of persons needed for just adjudication
• SCRCP 55 — Default
• SCRCP 56 — Summary judgment

This page explains what the rules say. It isn't legal advice, and cases in magistrate's court run on a separate set of rules with different deadlines that this page does not cover.