Massachusetts Civil Procedure Rule 12: Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings
(1) After service upon him of any pleading requiring a responsive pleading, a party shall serve such responsive pleading within 20 days unless otherwise directed by order of the court.
(2) The service of a motion permitted under this rule alters this period of time as follows, unless a different time is fixed by order of the court: (i) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; (ii) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.
(b) How Presented. 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;
(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;
(9) Pendency of a prior action in a court of the Commonwealth;
(10) Improper amount of damages in the Superior Court as set forth in G. L. c. 212, §3 or in the District Court as set forth in G. L. c. 218, §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, he may assert at the trial any defense in law or fact to that claim for relief. If, on any motion asserting the defense numbered (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. A motion, answer, or reply presenting the defense numbered (6) shall include a short, concise statement of the grounds on which such defense is based.
(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.
(d) Preliminary Hearings. The defenses specifically enumerated (1)-(10) 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.
(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, he 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 10 days after notice of the order or within such 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. 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 him or upon the court's own initiative at any time, the court may after hearing order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule 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 (h)(2) hereof on any of the grounds there stated.
(h) Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, misnomer of a party, pendency of a prior action, or improper amount of damages is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 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 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 a party or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
Effective July 1, 1974. Amended November 28, 2007, effective March 1, 2008, May 6, 2008, effective July 1, 2008.
Reporter's Notes (2008): Rule 12(b) has been amended to add a new numbered defense, 12(b)(10). This defense permits a defendant to raise by motion to dismiss the issue whether the amount of damages that the plaintiff is reasonably likely to recover meets the requirements of G.L. c. 212, §3 (Superior Court) or G.L. c. 218, §19 (District Court and Boston Municipal Court). Under G.L. c. 212, §3, an action may proceed in the Superior Court "only if there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000...." Under G.L. c. 218, 19, an action may proceed in the District Court or Boston Municipal Court "only if there is no reasonable likelihood that recovery by the plaintiff will exceed $25,000...." Before the addition of new Rule 12(b)(10), the issue whether the plaintiff met the statutory requirements regarding the $25,000 amount was not included among the defenses enumerated in Rule 12(b), and presumably could be raised only in the answer. With this amendment, the issue may now also be raised by a motion to dismiss. In addition, Rule 12(h) has been amended to provide that failure to raise improper amount of damages in a motion to dismiss or answer constitutes a waiver. Violation of the statutory requirements regarding the $25,000 amount is procedural, not jurisdictional. G.L. c. 212, 3A(b); G.L. c. 218, 19A(b). See Sperounes v. Farese, 449 Mass. 800 (2007). In Sperounes, the Court held that under the statewide one-trial system, a District Court judge must dismiss an action where an objection has been made and where there is a reasonable likelihood the plaintiff will recover more than $25,000. However, where the defendant does not object, a District Court judge has the discretion to dismiss the action sua sponte or to permit it to proceed. Sperounes v. Farese, supra at 806-807.
Reporter's Notes (2008): A 2008 amendment to Rule 12 added a new numbered defense, 12(b)(10), improper amount of damages in the Superior Court, District Court, and Boston Municipal court. This prior amendment was part of a group of amendments to the Massachusetts Rules of Civil Procedure in light of the adoption of the statewide one-trial system for civil cases. This second 2008 amendment to Rule 12 corrects an oversight in the prior group of amendments. The correction changes the language in Rule 12(d) from "defenses specifically enumerated (1)-(9) in subdivision (b)" to "defenses specifically enumerated (1)-( 10) in subdivision (b)." The amendment to 12(d) is technical in nature and merely reflects the additional numbered defense provided by Rule 12(b)(1)-(10).