9-11-12. Answer, defenses, and objections; when and how presented and heard; when defenses waived; stay of discovery.

When answer presented.#

1. (1)

   Except as provided in paragraph (2) of this subsection, a defendant shall serve an answer within 30 days after the service of the summons and complaint upon the defendant, unless otherwise provided by statute. A cross-claim or counterclaim shall not require an answer, unless one is required by order of the court, and shall automatically stand denied.#

2. (2)

   Unless the court sets a different time, serving a motion under this Code section alters the time for serving an answer pursuant to paragraph (1) of this subsection as follows:#

   1. (A)

      If the court denies the motion or postpones its disposition until trial, the answer shall be served within 15 days after notice of the court’s action; or#

   2. (B)

      If the court grants a motion for a more definite statement, the answer shall be served within 15 days after the more definite statement is served.#

How defenses and objections 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 in writing:#

1. (1)

   Lack of jurisdiction over the subject matter;#

2. (2)

   Lack of jurisdiction over the person;#

3. (3)

   Improper venue;#

4. (4)

   Insufficiency of process;#

5. (5)

   Insufficiency of service of process;#

6. (6)

   Failure to state a claim upon which relief can be granted;#

7. (7)

   Failure to join a party under Code Section 9-11-19.#

8. A motion making any of these defenses shall be made before or at the time of 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 a motion 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 Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.

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 Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.#

Preliminary hearings. The defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section 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.#

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 proper responsive pleading, such party may move for a more definite statement. 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.#

Motion to strike. Upon motion made by a party 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.#

Consolidation of defenses in motion. A party who makes a motion under this Code section may join with it any other motions provided for in this Code section and then available to him. If a party makes a motion under this Code section but omits therefrom any defense or objection then available to him which this Code section 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 paragraph (2) of subsection (h) of this Code section on any of the grounds there stated.#

Waiver or preservation of certain defenses.#

1. (1)

   A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived:#

   1. (A)

      If omitted from a motion in the circumstances described in subsection (g) of this Code section; or#

   2. (B)

      If it is neither made by motion under this Code section nor included in a responsive pleading, as originally filed.#

2. (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 Code Section 9-11-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.#

3. (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.#

Officer’s defense of service. The officer making service of process and the principal officer in charge of service made by a deputy need not be made a party to any action or motion where the defense or defenses under paragraph (2), (4), or (5) of subsection (b) of this Code section are asserted by motion or by answer. Any party to the action may give notice of the objection to the service, made pursuant to such paragraphs, to the officer making the service and to the principal officer in case of service made by a deputy, and the court shall afford the officer or officers opportunity to defend the service, in which case the decision on the question of service shall be conclusive on the officer and on his principal in case of service by a deputy.#

Stay of discovery.#

1. (1)

   If a party files a motion to dismiss before filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed until the ruling of the court on such motion; provided, however, that, if a defendant files an answer before the ruling of the court on such motion, the stay imposed by this subsection shall immediately terminate with respect to such defendant. The court shall decide the motion to dismiss within 90 days following the conclusion of briefing on such motion.#

2. (2)

   The discovery period and all discovery deadlines shall be extended for a period equal to the duration of the stay imposed by this subsection.#

3. (3)

   If the court has not ruled on the motion to dismiss within 90 days following the conclusion of briefing on such motion, the court may upon motion of a party, and for good cause shown, terminate or modify the stay imposed by this subsection; provided, however, that such remedy shall not preclude any other remedy available for the failure to timely rule on such motion, including, but not limited to, a writ of mandamus.#

4. (4)

   If a motion to dismiss raises defenses set forth in paragraph (2), (3), (5), or (7) of subsection (b) of this Code section; if any party needs discovery in order to identify persons who may be joined or substituted as proper parties; or if any party needs discovery in order to establish the jurisdiction of the court, limited discovery needed to respond to such defenses, to identify such persons, or to establish such jurisdiction shall be permitted notwithstanding the stay imposed by this subsection.#

5. (5)

   The provisions of this subsection shall not modify or affect the provisions of paragraph (2) of subsection (f) of Code Section 9-11-23 or any other power of the court to stay discovery.#