SCRCP 12

BY PLEADING OR MOTION - MOTION FOR JUDGMENT ON PLEADINGS

(a) When Presented. A defendant shall serve his answer within 30 days after the service of the

complaint upon him, unless the Court directs otherwise when service of process is made pursuant to

Rule 4(e), and provided further that the State of South Carolina shall answer or otherwise respond to

an application for post-conviction relief within 60 days after service of the application, if it arises out of

a guilty plea, and 90 days if it arises out of a trial. A party served with a pleading stating a cross-claim

against him shall serve an answer thereto within 30 days after the service upon him. The plaintiff shall

serve his reply to a counterclaim in the answer within 30 days after service of the answer or, if a reply is

ordered by the court, within 30 days after service of the order, unless the order otherwise directs. The

service of a motion permitted under this rule alters these periods of time 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 pleading shall be served within 15 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 15 days after the service of the more definite statement, and a responsive

pleading, if necessary, shall be served within 15 days after notice of the court's action on a motion to

strike.

Note:

This Rule 12(a) is identical to the Federal Rule except that it changes the time to

answer from 20 to 30 days, and the time to plead after motion denied from 10 to 15

days. No other changes in State practice are affected by the Rule.

Note to 1986 Amendment:

The amendment to Rule 12(a)(2) sets the time for response after a motion to strike at

15 days, which is the same time set for pleading after a successful motion for a more

definite statement.

Note to 1995 Amendment:

Rule 12(a) is amended to provide special time periods for the State to respond to

applications for post-conviction relief because the thirty day time period for civil

litigation is often extended so that the State may obtain a transcript of the proceeding

before responding.

(b) How Presented. Every defense, in law or fact, to a cause of action 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

facts sufficient to constitute a cause of action, (7) failure to join a party under Rule 19, (8) another

action is pending between the same parties for the same claim. 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 cause of action or defense to which an adverse party is not required

to serve a responsive pleading, he may assert at the trial any defense in law or fact to that cause of

action or defense. If, on a motion asserting the defense numbered (6) to dismiss for failure of the

pleading to state facts sufficient to constitute a cause of action, 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.

Note:

This important Rule 12(b) enables a party to: (1) raise by motion or answer all of the

defenses now raised by demurrer, and (2) eliminates the necessity of the awkward

"special appearance to object to jurisdiction" under present State practice. The motion

should be made before answer for early disposition of cases; but the defenses

enumerated may be made in the responsive pleading and are not waived by being

stated in a pleading rather than by motion. The last sentence eliminates the so-called

"speaking demurrer" at trial, by treating such late motion as a motion for Summary

Judgment under Rule 56.

Note to 1986 Amendment:

The amendment to the fourth sentence of Rule 12(b) clarifies the litigant's right to

assert at trial any defenses as well as any claims he could have raised in a permissive

pleading but chose not to do so. Consequently, the election not to reply to an

affirmative defense does not waive the right to contest that affirmative defense.

(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.

Note:

This Rule 12(c) preserves the present common law practice in this State; and it is more

important than the Federal Rule, because of the requirement for fact pleading. It may

also be treated as a motion for summary judgment in proper circumstances.

(d) Preliminary Hearings. The defenses specifically enumerated (1)-(8) in subdivision (b) of this rule,

whether made in a pleading or by motion, motions for judgment on the pleadings under subdivision

(c) of this rule, and motions for summary judgment under Rule 56, 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.

Note:

This Rule 12(d) is the same as the Federal Rule, and assures timely disposal of 12(b)

and 12(c) motions to dismiss or for judgment prior to 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 15 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.

Note:

This Rule 12(e) is the same as the Federal Rule and effects no change in present

practice, except time for compliance is changed from 10 days to 15 days.

(f) Motion to Strike. Upon motion pointing out the defects complained of, and made by a party

before responding to a pleading or, if no responsive pleading is required within 30 days after the

service of the pleading upon him 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.

Note:

This Rule 12(f) preserves present State practice under Code § 15-13-60 and > § 15-13-

440 verbatim.

Note to 1986 Amendment:

The amendment to Rule 12(f) makes clear that a motion to strike must point out the

defects complained of, and is consistent with the language of Rule 12(e).

(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.

Note:

This Rule 12(g) is the same as the Federal Rule. It is new material to help prevent

piecemeal presentation of defenses by separate motions.

(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, or that another action is pending between

the same parties for the same claim 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 cause of action 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.

Note:

This Rule 12(h) should be read together with Rule 12(g) in defining those defenses

which are waived if not presented by pleading or motion.