Rule 21.Defenses and Objections; How Presented; By Pleading or Motion; Motion for Judgment on the Pleadings

Most defenses to a claim have to go in the responsive pleading — the answer to a complaint, or the response to a counterclaim, cross-claim, or third party claim. Rule 21 carves out nine defenses that a party can instead raise by an early motion to dismiss, before ever filing that responsive pleading: lack of subject matter jurisdiction, lack of personal jurisdiction, another action already pending between the same parties for the same claim, the plaintiff’s lack of legal capacity to sue, insufficient summons or process or insufficient service of either, that the party asserting the claim is not the real party in interest, failure to join a party required under Rule 29, failure to state ultimate facts sufficient to constitute a claim, and that the pleading itself shows the action was not brought within the time a statute allows. The point of pulling these out is efficiency: rather than answer a complaint that might get thrown out anyway, a defendant can ask the court to resolve a threshold, potentially case-ending problem first. A motion asserting any of these defenses generally must be filed before any further pleading, and raising several of them together in one motion or pleading does not waive any of them.

Whoever raises one of these defenses has to state the grounds specifically and with particularity, not in general terms. For most of them — everything except failure to state ultimate facts and an on-its-face statute of limitations problem — if the supporting facts are not apparent from the pleading itself and a party puts in affidavits, declarations, or other evidence, the court gives every party a reasonable opportunity to respond with evidence of its own. The court can then resolve the factual dispute on the spot, put off a ruling until after more discovery, or wait until trial. If the court grants the motion, it can enter judgment for the moving party or give the other side leave to file an amended pleading; when the ground for dismissal is that another action is already pending between the same parties, the court has extra flexibility — it can enter judgment, stay the case, or defer entering judgment while the other action plays out.

Rule 21 also covers several related motions. After the pleadings close, but with enough time left to avoid delaying trial, any party can move for judgment on the pleadings. All nine threshold defenses, however raised, along with a motion for judgment on the pleadings, must be heard and decided before trial unless the court orders the hearing deferred to trial itself. Separately, a party facing a pleading so vague or indefinite that its claim, defense, or reply is not apparent can move to make it more definite and certain, and if the court agrees and its order is not obeyed within 10 days, the court can strike the pleading or make whatever order it finds just. A related motion to strike lets a party target sham, frivolous, or irrelevant material; an insufficient defense; redundant matter; multiple claims or defenses crammed together without being separately stated; or a response to an amended pleading that improperly raises new issues.

Timing matters more for some of these defenses than others. Lack of personal jurisdiction, another action pending, and insufficient summons, process, or service are waived — permanently, with no fix by amendment — if a party leaves them out of an initial motion that raises other Rule 21 defenses, or fails to raise them by motion or in the responsive pleading at all; the one exception is that a party may bring a single motion challenging personal jurisdiction or service without folding in every other available defense. Lack of capacity to sue, not being the real party in interest, and an on-its-face statute of limitations problem follow a looser rule: they are waived only if they never surface in a motion or in the responsive pleading at all, and even then, a court can allow a late amendment adding one if the party did not know, and could not reasonably have known, that the defense existed, or if fairness otherwise calls for it. Failure to state ultimate facts, failure to join an indispensable party, and an objection that a reply fails to state a legal defense or does not do enough to overcome a defense in the answer are not on the clock at all — a party can raise any of them in a later pleading, in a motion for judgment on the pleadings, or at trial. And a challenge to the court’s subject matter jurisdiction can never be waived: if it appears at any point, by motion or otherwise, that the court lacks it, the court must dismiss the action.