§12.6 Analysis

• Jurisdiction: Washington

§12.6 ANALYSIS

This subsection provides an analysis of CR 12 and FED. R. CIV.. P. 12.

(1)Timing of presentation of defenses

The time requirements for when to serve a responsive pleading are, in contrast to other parts of the rule, straightforward. A defendant will have 20 days in which to serve an answer when in-state service is accomplished pursuant to CR 4. A defendant will have 60 days in which to serve an answer if service is accomplished in any other manner.

CR 12(a) does not set forth the time requirements for responding when service is accomplished under CR 4(d)(4)—which provides for service by mail as an alternative to service by publication when the necessary showing is made. The practitioner must look to CR 4(d)(4) to find the time requirement: a defendant has 90 days from the date of mailing (the date the pleading was deposited in the mail must be stated in the summons) to appear and answer the complaint.

If a party moves to dismiss under CR 12 before filing a responsive pleading, it will have 10 days to serve the pleading after notice of the court's action denying the motion or, in case of an order for a more definite statement, 10 days after service of the more definite statement.

A party has 20 days to answer a cross claim or reply to a counterclaim. As to third-party claims, CR 14(a) states that a third-party defendant "shall make his defenses to the third party plaintiff's claim as provided in rule 12 ...." Because rule 12 does not specifically address third-party claims, the time requirements for an answer by a defendant will presumably apply.

(2)Motions to dismiss under CR 12(b)

Motions under CR 12(b) asserting both waivable and nonwaivable defenses are discussed below.

(a) Lack of jurisdiction over the subject matter (nonwaivable)

If a court never had jurisdiction to decide a dispute then, a fortiori, a party always has the ability to raise that defense, even after judgment is entered. Bour v. Johnson,80 Wn.App. 643, 646-47, 910 P.2d 548 (1996). Accordingly, a judgment may be vacated, even after the mandate has been issued, if the court never had subject matter jurisdiction. Id. at 647. Whether a court has subject matter jurisdiction is a question of law, and, as such, a de novo standard is applied on appellate review. Id.

A defendant may assert either a facial or a factual challenge to subject matter jurisdiction in its CR 12(b)(1) motion. Wright v. Colville Tribal Enter. Corp.,159 Wn.2d 108, 119, 147 P.2d 1275 (2006). In a facial challenge, the claim is that the plaintiff's allegations on their face are insufficient to establish the court's jurisdiction. Id. In this type of challenge, the plaintiff is afforded the same procedural protections under CR 12(b)(6), i.e., factual allegations in the complaint are taken as true, are construed liberally in favor of the plaintiff, and other materials will not be considered. Id.

A defendant raises a factual challenge to subject matter jurisdiction when it submits declarations or other evidence in support of the motion to dismiss. Id. Accordingly, the trial court will proceed as if motion was brought under CR 56. Id. An opposing party must thus counter with evidence and cannot rely on its complaint to defeat the motion. Id. at 120. Courts generally allow the nonmoving party to conduct discovery to oppose the motion, particularly when the information is in the control of the moving party. Id. Unlike a summary judgment motion, the trial court has the discretion to evaluate for itself the merits of jurisdictional claims and may order an evidentiary hearing for that purpose. Id.

Practice Tip: If a defendant submits a declaration or affidavit in support of a motion to dismiss under CR 12(b)(6), the motion will be treated as a summary judgment motion under CR 56. Ask yourself, on behalf of a defendant, whether it makes sense to file such a motion under CR 12(b)(6) or instead simply file a summary judgment motion.

(b) Lack of jurisdiction over the person (waivable)

Prior to the adoption of the civil rules, if a defendant entered a general notice of appearance, it waived its right to assert the defense that the court lacked jurisdiction over it. DiBernardo-Wallace v. Gullo,34 Wn.App. 362, 364, 661P.2d991(1983). That is no longer the case. Defendants who enter a general notice of appearance retain the ability to argue that the court does not have jurisdiction over them. Id. However, CR 12(h)(1) requires that this affirmative defense be made by motion or in the answer or else it is waived. In re Schneider, 173 Wn.2d 353, 362, 268 P.2d 215 (2011). Engaging in discovery that relates to the defense will not result in waiver. Crouch v. Friedman,51 Wn.App. 731, 735, 754 P.2d 1299 (1988). Whether engaging in discovery that does not relate to the defense will waive the defense, even if properly asserted, is not definitively answered by the reported cases.

(c)Improper venue (waivable)

If a defendant wishes to raise the defense of improper venue, it must do so either by moving to dismiss for improper venue before filing an answer or by raising the defense in its answer. If it chooses the latter course, then it has the ability to move for dismissal for improper venue at any time. Voicelink Data Servs., Inc. v. Datapulse, Inc.,86 Wn.App. 613, 937 P.2d 1158 (1997). This includes moving to dismiss for improper venue right up to time of trial. Id. A defendant does not waive this defense by engaging in discovery unrelated to the venue issue. Id. Nor does a defendant waive this defense by asserting a compulsory counterclaim in its answer. Kuhlman Equip. Co. v. Tammermatic, Inc.,29 Wn.App. 419, 423, 628 P.2d 851 (1981).

If a trial court denies a defendant's motion to dismiss for improper venue, the defendant must seek an interlocutory appeal to preserve this defense unless it can demonstrate that it will be prejudiced if the case is tried in the improper venue. Lincoln v. Transam. Inv. Corp.,89 Wn.2d 571, 578, 573P.2d1316 (1978); see Russell v. Marenakos Logging Co.,61 Wn.2d 761, 765, 380P.2d744 (1963) ("[E]xcept in rare instances, the mills of justice grind with equal fineness in every county of the state ... .").

Practice Tip: If a CR 12(b) defense is pleaded, consider forcing the issue by filing an early motion to dismiss the defense. This action will be helpful if steps can be taken to cure a defect before the statute of limitations has run, such as filing the action in the proper venue or properly effecting service of process. Even when the defect is not subject to being cured, it is often prudent to resolve the issue early, before additional resources are expended on a case that might ultimately be lost because of the defense.

(d)Insufficiency of process (waivable)

Insufficiency of process is a defense that there is a defect in the form of the summons itself. Sammamish Pointe Homeowners Ass'n v.Sammamish Pointe L.L.C., 116 Wn.App. 117, 120, 64 P.3d 656 (2003), review granted, 150 Wn.2d 1025 (2004). CR 4(b) and...