Rule 12.Defenses and objections: When and how presented; motion for judgment on the pleadings; consolidating motions; waiving defenses; pretrial hearing
Current through January 1, 2025 · Last verified July 8, 2026
Full Text of Rule 12
Amendment History
The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.
Plain-English Summary
Rule 12 controls the opening moves of a defense. A defendant generally has 30 days after being served to answer, with the same 30-day period applying to answers to a counterclaim or crossclaim, and 30 days to reply to an answer if the court orders a reply. Filing certain motions under this rule — rather than answering right away — resets those deadlines: if the court denies the motion, the responsive pleading is due 14 days later; if the court orders a more definite statement, the responsive pleading is due 14 days after that statement is served.
Instead of answering immediately, a party can raise seven defenses by motion: lack of subject-matter jurisdiction, lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and failure to join a required party. The failure-to-state-a-claim defense — often called a motion to dismiss — can also be raised at trial if no responsive pleading was required.
After the pleadings close, a party can move for judgment on the pleadings. If that motion (or a failure-to-state-a-claim motion) relies on material outside the pleadings that the court doesn't exclude, the court treats it as a motion for summary judgment instead, and gives both sides a chance to respond to the outside material. Separately, a party can move for a more definite statement when a pleading is too vague to answer, or move to strike insufficient defenses or scandalous material.
Rule 12 also governs how defenses get waived. A party generally has to raise jurisdiction, venue, process, and service defenses in its first motion or responsive pleading, or lose them — except that failure to state a claim, failure to join a required party, and lack of subject-matter jurisdiction survive longer and can be raised later, even at trial.
Frequently Asked Questions
How long do I have to answer a complaint in West Virginia?
Generally 30 days after being served with the summons and complaint, unless another time applies under Rule 12 or a statute.
What is a "12(b)(6) motion"?
A motion to dismiss for failure to state a claim upon which relief can be granted — one of the seven defenses Rule 12(b) allows a party to raise by motion instead of waiting to answer.
What happens if I don't raise a defense like improper venue in my first motion or answer?
You generally waive it. Rule 12(h) requires defenses like lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process to be raised in the first responsive motion or pleading, or they're lost.
Can I still argue failure to state a claim later in the case?
Yes. Unlike the other Rule 12(b) defenses, failure to state a claim, failure to join a required party, and lack of subject-matter jurisdiction can be raised later — even at trial for the first two, and at any time for lack of subject-matter jurisdiction.