A Washington CR 12 motion to dismiss: seven defenses, 20 days or 60, and the nonparty-at-fault trap

CR 12 is Washington's counterpart to Federal Rule 12, and most of it will look familiar. Three things are not: the answer deadline depends on how service happened, the more-definite-statement standard is broader than the federal one, and subsection (i) creates a pleading obligation with no federal analogue.

Four different answer deadlines

CR 12(a) sets the time to serve an answer:

(1) Within 20 days, exclusive of the day of service, after the service of the summons and complaint upon the defendant pursuant to rule 4; (2) Within 60 days from the date of the first publication of the summons if the summons is served by publication in accordance with rule 4(d)(3); (3) Within 60 days after the service of the summons upon the defendant if the summons is served upon the defendant personally out of the state in accordance with RCW 4.28.180 and 4.28.185 or on the Secretary of State as provided by RCW 46.64.040; (4) Within 60 days after the service of the summons upon the defendant if the summons is served in a jail, detention facility, or prison facility pursuant to rule 4, unless a different time for response, appearance, or answer is specifically stated in statute. (5) Within the period fixed by any other applicable statutes or rules.

Twenty days is the shortest general answer period among the states this site covers — Oregon and California use 30, Texas uses the Monday-after-20-days formula. And "exclusive of the day of service" is written into the rule rather than left to the general time-computation rule.

Subsection (4) is distinctively Washington: a defendant served inside a correctional facility gets 60 days, not 20. It is a recognition that a person in custody cannot arrange a defence on a three-week clock.

Cross claims and replies: 20 days after service. Reply to a counterclaim: 20 days after service of the answer, or 20 days after service of a court order requiring a reply.

What a CR 12 motion does to the clock

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, the 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, the responsive pleading shall be served within 10 days after the service of the more definite statement.

Ten days, not the federal 14. That is a short runway for an answer you may not have begun drafting, and it starts on notice of the ruling, not on entry of a written order.

The seven defenses

CR 12(b): every defense shall be asserted in the responsive pleading, "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

At the option of the pleader — none of these has to be raised by motion, and CR 12(b) adds that "no defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion." Putting (2) and (6) in an answer together waives neither.

The motion "shall be made before pleading if a further pleading is permitted."

Conversion: if matters outside the pleading are presented on a (6) motion and not excluded, "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" by CR 56. That conversion carries CR 56's own timing — which the guide on Washington summary judgment covers.

What is waived, and what survives

CR 12(h)(1): personal jurisdiction, improper venue, insufficiency of process and insufficiency of service are waived if omitted from a CR 12 motion in the circumstances described in CR 12(g), or if neither made by motion nor included in a responsive pleading or an amendment permitted by CR 15(a) to be made as a matter of course.

That cross-reference matters. The amendment saving clause runs to CR 15(a)'s as-of-course amendment only — not to an amendment by leave. Once a responsive pleading has been served, the free window is gone and so is the chance to add a waived defence.

CR 12(h)(2): failure to state a claim, failure to join an indispensable party under rule 19, and failure to state a legal defense may be raised in any CR 7(a) pleading, by motion for judgment on the pleadings, or at the trial on the merits.

CR 12(h)(3): whenever it appears "by suggestion of the parties or otherwise" that the court lacks subject-matter jurisdiction, the court shall dismiss the action. Never waived, and the court raises it on its own.

Consolidation — CR 12(g): a party who makes a CR 12 motion may join any other motion the rule provides that is then available. Omit an available defence from your motion and you cannot bring it later by motion, except one preserved by CR 12(h)(2).

A broader more-definite-statement standard

CR 12(e) is where Washington quietly departs from the federal text:

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, or if more particularity in that pleading will further the efficient economical disposition of the action, the party may move for a more definite statement before interposing a responsive pleading.

FRCP 12(e) has only the first branch. Washington adds a second ground — efficiency — that does not require showing the pleading is unanswerable.

The motion must "point out the defects complained of and the details desired." If it is granted and the order is not obeyed within 10 days after notice of the order, the court may strike the pleading or make such order as it deems just.

Motion to strike

CR 12(f): on motion by a party before responding to a pleading, or if no responsive pleading is permitted, on motion within 20 days after service of the pleading, or on the court's own initiative at any time, the court may strike from any pleading "any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

The nonparty-at-fault trap

CR 12(i) has no federal counterpart and is the subsection most often missed:

Whenever a defendant or a third party defendant intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim. The identity of any nonparty claimed to be at fault, if known to the party making the claim, shall also be affirmatively pleaded.

Washington allocates fault among all entities, including those who are not parties. But you only get the benefit of that allocation if you plead it — by name where you know the name.

This is a pleading deadline hiding inside a defence. It belongs on the answer checklist, next to the statute of limitations.

Preliminary hearings

CR 12(d): the seven enumerated defenses, whether made in a pleading or by motion, and a CR 12(c) motion for judgment on the pleadings, "shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination be deferred until the trial."

Any party can force the issue to be decided early — including the party that did not raise it.

Judgment on the pleadings

CR 12(c): after the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. The same conversion-to-summary-judgment rule applies if outside matters come in.

How Washington compares

A short checklist

1. Work out how you were served first. The answer to that question is the difference between 20 days and 60.
2. Count from the day after service — CR 12(a)(1) says so in terms.
3. Consolidate everything into one motion. CR 12(g) forecloses a second one on an available ground.
4. Do not rely on amending later to add a jurisdiction, venue, process or service defence. CR 12(h)(1) saves only the as-of-course amendment.
5. Watch for conversion. Attaching a declaration to a (6) motion turns it into a CR 56 motion.
6. Calendar 10 days from notice of a denial. It is shorter than you expect.
7. Plead nonparty fault in the answer, with names. CR 12(i) makes it an affirmative defense.

Where these rules live

• Wash. CR 4 — Process
• Wash. CR 6 — Time
• Wash. CR 8 — General rules of pleading
• Wash. CR 12 — Defenses and objections
• Wash. CR 15 — Amended and supplemental pleadings
• Wash. CR 19 — Joinder of persons needed for just adjudication
• Wash. CR 55 — Default and judgment
• Wash. CR 56 — Summary judgment

This page explains what the rules say. It isn't legal advice, and RCW 4.22.070 is a statute this site doesn't reproduce.