Rule 12 - Defenses and Objections - when and How Presented - by Pleading or Motion - Motion for Judgment on the Pleadings(a) Answers - When presented; return day. All defendants shall appear or answer at the time appointed in the summons, on the second Monday following the date of service, except where the district judge sets some other secular day; and should such Monday be a legal holiday then upon the next secular day. In summary possession proceedings under chapter 666 of the Hawai'i Revised Statutes, all defendants shall appear on or answer by a return day which shall be the next court session no less than five days following the date of service if made in the circuit in which the action was commenced, and shall be the next court session not less than seven days following the date of service if made in another circuit; provided, that if a defendant cannot be found in the State, the return day shall be the next court session not less than ten days following the required posting on the premises and delivery or mailing of the complaint and summons as ordered by the court.
COMMENTS:
The time periods in Rule 12(a) for summary possession proceedings differ from those set under the old rule in consideration of the passage by the 1991 Judicial Conference of Resolution No. 91-3 and is intended to correct the problem in the Rural Courts of O'ahu and the Neighbor Island Courts which did not convene more than once a week and therefore could not comply with the time requirements of the old Rule 12(a).
(b) How presented. Every defense, in law or fact, to the complaint or third-party complaint, may be asserted in the responsive pleading thereto, 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, (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. A motion making any of these defenses may be made before trial. 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, that adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense number (6) 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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. COMMENTS:
Adopts similar language of HRCP Rule 12(b) with changes to gender neutral language.
(c) Motion for judgment on the 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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. COMMENTS:
Not changed.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule 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. COMMENTS:
Not changed except title - adopts HRCP Rule 12(d) title.
(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, that party may move for a more definite statement before interposing its 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 10 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. The order of the court granting or denying the motion shall fix the time within which the responsive pleading shall be filed and served. COMMENTS:
Changed to gender neutral language.
(f) Motion to strike. 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 20 days after the service of the pleading upon the moving party 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. COMMENTS:
Adopts HRCP Rule 12(f) verbatim except with changes to gender neutral language.
(g) Reserved. COMMENTS:
Not changed.
(h) Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived if it is not made by motion under this rule or included in a responsive pleading or an amendment thereof permitted by Rule 15. (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 Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 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. Haw. Dis. Ct. R. Civ. P. 12
Amended effective 12/6/1996.COMMENTS:
Adopts HRCP Rule 12(h) verbatim.
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