Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing(a) Time to Serve a Responsive Pleading.(1)In General. Unless another time is specified by this rule or statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer within 20 days after being served with the summons and complaint;(B) A party must serve an answer to a counterclaim or crossclaim within 20 days after being served with the pleading that states the counterclaim or crossclaim.(2)Effect of a Motion. Unless the Court sets a different time, serving a motion under this rule directed at a pleading in whole or part alters these periods as follows: (A) If the Court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 10 days after notice of the Court's action; or(B) If the Court grants a motion for a more definite statement, the responsive pleading must be served within 10 days after the more definite statement is served.(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:(1) lack of subject-matter jurisdiction;(2) lack of personal jurisdiction;(4) insufficient process;(5) insufficient service of process;(6) failure to state a claim upon which relief can be granted; and(7) failure to join a party under Rule 19.(c) Motion for Judgment on the Pleadings. After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.(d) Result of Presenting Matters Outside the Pleadings. If a party moves under Rule 12(b)(6) or 12(c) and presents matters outside the pleadings that are not excluded by the Court, then(1) the motion must be treated as one for summary judgment under Rule 56; and(2) all parties must be given a reasonable opportunity to present pertinent material under Rule 56.(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but that is so vague or ambiguous that the party cannot reasonably prepare a response. The party must move before filing a responsive pleading, and the motion must identify the defects and the details required to reasonably prepare a response. If the Court orders a more definite statement and the order is not obeyed within 10 days after notice of the order or within the time the Court sets, the Court may strike the pleading or issue any other appropriate order.(f) Motion to Strike. A party may move to strike from a pleading any insufficient defense or any material that is redundant, scandalous, immaterial, or not pertinent. The party must move either before responding to the pleading or, if a response is not allowed, within 20 days after being served with the pleading. The Court may also act on its own initiative.(g) Joining Motions.(1)Right to Join. A party may join a motion allowed by this rule with any other motion allowed by this rule.(2)Limitation on Further Motions. Except as provided in Rule 12(h)(2)-(4), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.(h) Asserting and Waiving Defenses Under Rule 12(b).(1)Defenses Under Rule 12(b)(1). A party may assert a defense under Rule 12(b)(1) motion filed at any time, or the Court may raise the defense on its own initiative.(2)Defenses Under Rule 12(b)(2)-(5).(A) A party may assert a defense listed in Rule 12(b)(2)-(5) by motion filed before a responsive pleading, if a responsive pleading is allowed.(B) A party that does not file a motion contemplated by Rule 12(h)(2)(A) may preserve a defense listed in Rule 12(b)(2)-(5) by including it in a responsive pleading or in an amendment to the responsive pleading allowed by Rule 15(a)(1) as a matter of course.(C) Otherwise, a party waives any defense listed in Rule 12(b)(2)-(5).(3)Defenses Under Rule 12(b)(6). A party may assert a defense under Rule 12(b)(6) by filing a motion before a responsive pleading, if a responsive pleading is allowed. A party may preserve the defense by including it in any pleading allowed or ordered under Rule 7(a). Otherwise, the defense is waived.(4)Defenses Under Rule 12(b)(7). A party may assert a defense under Rule 12(b)(7) by motion filed before a responsive pleading, if a responsive pleading is allowed, by motion under Rule 12(c), or at trial.(5)When No Responsive Pleading Is Allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim.(6)Amended and Supplemental Pleadings. If a pleading raises new matter that is subject to a defense listed in Rule 12(b)(2)-(6), then an opposing party may assert that defense-even if not asserted or preserved initially-as to the new matter.(i) Deferral Until Trial. The Court may defer until trial ruling on any defense listed in Rule 12(b)-whether made in a pleading or by motion-or any motion under Rule 12(c).Amended May 31, 2024, effective 6/14/2024; amended July 12, 2024, effective 7/12/2024.Comment
In 2024, Rule 12 was revised to align its language with Federal Rule of Civil Procedure 12 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 12.
No substantive change in the interpretation of the rule was intended, and prior Delaware authorities interpreting the rule remain applicable.