Rule 12.Defenses and Objections

Part III: Pleadings and Motions · Last amended 2006 · Last verified July 16, 2026

In one sentenceRule 15-6-12 sets the time to answer or reply, lists the defenses — including failure to state a claim upon which relief can be granted — that a party may raise by motion before answering, and governs motions for judgment on the pleadings, more definite statements, striking material, and the waiver or preservation of certain defenses.

Full Text of Rule 15-6-12

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g) (h)

(a) Presentation of defenses and objections — Time. A defendant shall serve the answer within thirty days after the service of the complaint upon defendant, except when otherwise provided by statute or rule. A party served with a pleading stating a cross-claim shall serve an answer within twenty days after the service. The plaintiff shall serve a reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion permitted under § 15-6-12 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 ten 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 ten days after the service of the more definite statement;

(3) If an appeal is taken from an order sustaining a motion to dismiss and such order is thereafter reversed, the responsive pleading shall be served within twenty days after the judgment or order of reversal is filed in the trial court.

(b) Presentation of defenses and objections — Manner. 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) Insufficiency of process;

(4) Insufficiency of service of process;

(5) Failure to state a claim upon which relief can be granted;

(6) Failure to join a party under § 15-6-19. 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. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) 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 § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

(c) Motion for judgment on pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings 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 § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

(d) Pretrial hearings. The defenses specifically enumerated (1)-(6) in § 15-6-12(b), whether made in a pleading or by motion, and the motion for judgment mentioned in § 15-6-12(c) 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.

(e) Motion for more definite statement. 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, the party may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

(f) Motion to strike matter from pleading. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court’s own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

(g) Joinder of defenses in motion. A party who makes a motion under § 15-6-12 may join with it any other motions herein provided for and then available to him. If a party makes a motion under § 15-6-12 but omits therefrom any defense or objection then available to him which § 15-6-12 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 15-6-12(h)(2) on any of the grounds there stated.

(h) Waiver or preservation of certain defenses.

(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is neither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15-6-15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under § 15-6-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 15-6-7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) 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.

End

Plain-English Summary

Rule 15-6-12 governs the opening moves of a South Dakota lawsuit after the complaint is served. Subdivision (a) sets the default clock: a defendant generally must serve an answer within thirty days after service of the complaint, a party served with a cross-claim has twenty days, and a plaintiff has twenty days to reply to a counterclaim. Filing a motion under this rule resets that clock — if the court denies the motion, the responsive pleading is due ten days after the court’s ruling; if the court orders a more definite statement, it is due ten days after that statement is served; and if a dismissal is reversed on appeal, it is due twenty days after the reversal is filed in the trial court.

Subdivision (b) is the rule’s core. It lists six defenses a party may raise by motion instead of waiting to plead them in an answer: lack of jurisdiction over the subject matter, lack of jurisdiction over the person, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 15-6-19. The fifth of these — often called a motion to dismiss for failure to state a claim, or an MTD — challenges whether the complaint’s own allegations, taken as true, add up to a legal claim at all. If the motion relies on matters outside the pleading that the court does not exclude, subdivision (b) converts it into a motion for summary judgment under Rule 15-6-56, with both sides given a fair chance to submit the material that rule requires.

The remaining subdivisions round out motion practice under this rule. Subdivision (c) allows a motion for judgment on the pleadings after the pleadings close, which converts to summary judgment the same way a failure-to-state-a-claim motion does if outside matters come in. Subdivision (e) allows a motion for a more definite statement when a pleading is too vague to answer, with the court able to strike the pleading if its order for a more definite statement goes unheeded. Subdivision (f) allows a motion to strike insufficient defenses or redundant, immaterial, impertinent, or scandalous matter. Subdivision (g) requires joining available Rule 15-6-12 motions together or losing them, and subdivision (h) works out which defenses are waived if omitted — jurisdiction over the person, insufficiency of process, and insufficiency of service of process are waived if not raised in time, while failure to state a claim, failure to join an indispensable party, and lack of subject matter jurisdiction survive much later in the case, with the court required to dismiss on its own if it lacks subject matter jurisdiction at any point.

Frequently Asked Questions

What is the South Dakota equivalent of a motion to dismiss for failure to state a claim?

Rule 15-6-12(b)(5) allows a party to move to dismiss for failure to state a claim upon which relief can be granted. This is the defense commonly called a motion to dismiss, or MTD, and it can be raised by motion instead of waiting for an answer.

How long does a defendant have to answer a complaint in South Dakota?

Rule 15-6-12(a) requires the defendant to serve the answer within thirty days after service of the complaint, except when a statute or other rule provides a different time.

What happens if my failure-to-state-a-claim motion relies on evidence outside the complaint?

Rule 15-6-12(b) converts the motion into one for summary judgment under Rule 15-6-56 if matters outside the pleading are presented and not excluded by the court, and both sides must then be given a reasonable opportunity to present the material that summary judgment practice requires.

What defenses can I raise by motion instead of in my answer?

Rule 15-6-12(b) lists six: lack of subject matter jurisdiction, lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and failure to join a party under Rule 15-6-19.

Can I lose the right to raise a defense like insufficient service of process later in the case?

Yes. Rule 15-6-12(h)(1) treats lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process as waived if omitted from an available Rule 15-6-12 motion or left out of the responsive pleading and any amendment allowed as a matter of course.

Amendment History

(a)SDC 1939 & Supp 1960, § 33.0907; SD RCP, Rule 12 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; 2006, ch 284 (Supreme Court Rule 06-10).

(b)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; 2006, ch 285 (Supreme Court Rule 06-11).

(c)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

(d)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

(e)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; 2006, ch 286 (Supreme Court Rule 06-12).

(f)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

(g)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

(h)SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

Source & verification. Rule text and History are reproduced verbatim from the South Dakota Codified Laws, published by the South Dakota Legislative Research Council. Last verified July 16, 2026. · Official source

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