Del. Ct. Com. Pl. Civ. R. 12

(a) Time. A defendant shall serve an answer within 20 days after service of process, complaint and

affidavit, if any, upon that defendant, unless the Court directs otherwise when service of process is made

pursuant to Rule 4(f)(1)(VI). If a defendant appears before service is made upon that defendant, that

defendant shall serve an answer within 20 days after appearance. A party served with a pleading stating a

cross-claim against that party shall serve an answer thereto within 20 days after the service upon that

party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the

answer or, if a reply is ordered by the Court, within 20 days after service of the order, unless the order

otherwise directs. The service of a motion permitted under this rule alters these periods 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 pleadings shall be served within 10 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 10 days after the service of the more definite statement.

(3) If, under the statute, an affidavit of demand could be filed in any cross-claim, counter-claim or

third-party claim, if such claim had been the subject of a separate action, an affidavit of demand in

conformity with the statute may be served with this pleading asserting such claim. If such affidavit of

demand is served, the party served shall, within 20 days after service, either move that judgment be

refused notwithstanding the affidavit of demand or, serve with the pleading an affidavit of defense in

conformity with the statute.

(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, (3) improper venue,

(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

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 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 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.

(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) — (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.

(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 a 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.

(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 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.

(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 the party. If a party makes a motion under this

rule but omits therefrom any defense or objection then available to the party which this rule permits to be

raised by motion, the party shall not thereafter make a motion based on the defense or objection so

omitted, except a motion as provided in paragraph (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, or

insufficiency of service of process is waived (A) if omitted from a motion in the circumstances

described in paragraph (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 the parties or otherwise that the Court lacks jurisdiction of

the subject matter, the Court shall dismiss the action.