Rule 55.27 Defenses and Objections—How Presented—By Pleading or Motion—Motion for Judgment on the Pleadings

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

XXVII. Rule 55.27 Defenses and Objections—How Presented—By Pleading or Motion—Motion for Judgment on the Pleadings

A. Text of Rule

(a) How Presented. Every defense, in law or fact, to a claim 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) That plaintiff does not have legal capacity to sue,

(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 52.04,

(8) That plaintiff should furnish security for costs,

(9) That there is another action pending between the same parties for the same cause in this state,

(10) That several claims have been improperly united,

(11) That the counterclaim or cross-claim is one which cannot be properly interposed in this action.

A motion making any of these defenses shall be made:

(A) Within the time allowed for responding to the opposing party's pleading, or

(B) If no responsive pleading is permitted, within thirty days after the service of the last pleading.

Motions and pleadings may be filed simultaneously without waiver of the matters contained in either.

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 the 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 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 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

(b) 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 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

(c) Preliminary Hearings. The defenses specifically enumerated (1)–(12) in subdivision (a) of this Rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (b) 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.

(d) Motion for More Definite Statement. A party may move for a more definite statement of any matter contained in a pleading that is not averred with sufficient definiteness or particularity to enable the party properly to prepare responsive pleadings or to prepare generally for trial when a responsive pleading is not required. If the motion is granted and the order of the court is not obeyed within ten 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.

(e) 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 thirty days after the service of the pleading upon any 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.

(f) Consolidation of Defenses in Motion. A party who makes a motion under this Rule 55.27 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 55.27 but omits therefrom any defense or objection then available that this Rule 55.27 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 Rule 55.27(g)(2) on any of the grounds there stated.

(g) Waiver or Preservation of Certain Defenses.

(1) A defense of:

(A) Lack of jurisdiction over the person,

(B) Insufficiency of process,

(C) Insufficiency of service of process,

(D) That plaintiff should furnish security for costs,

(E) That plaintiff does not have legal capacity to sue,

(F) That there is another action pending between the same parties for the same cause in this state,

(G) That several claims have been improperly united, or

(H) That the counterclaim or cross-claim is one which cannot be properly interposed in this action, is waived if it is:

(A) Omitted from a motion in the circumstances described in Rule 55.27(f), or

(B) Neither made by motion under this Rule 55.27 nor included in a responsive pleading.

(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 52.04, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 55.01, or by motion for judgment on the pleadings, or at the trial on the merits, or on appeal.

(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.

B. Historical Note

Rule 55.27 is derived from former Rules 55.31, 55.33–55.37, 55.39, 55.40, and 55.43. The statutory predecessors of Rule 55.27 are §§ 509.290–509.340, 509.360, 509.370, and 509.400, RSMo 2000. Rule 55.27 was promulgated by the Supreme Court of Missouri under the authority of Article V, § 5, of the Missouri Constitution. Rule 55.27 supersedes the predecessor statutes when they are inconsistent. See State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423, 426 (Mo. banc 1978); see also Rule 41.02.

Rule 55.27 was amended in 1993, on May 26, 2000 (effective January 1, 2001), and on June 21, 2002 (effective January 1, 2003). The 2000 amendment slightly restructured subdivision (a) but did not change the cross-reference in subdivision (c). Effective January 1, 2001, there was no longer a defense number 12 under Rule 55.27(a).

C. Cross-References

See §§ 509.290–509.340, 509.360, 509.370, and 509.400, RSMo 2000.

Rule 55.27 is substantially the same as Federal Rule of Civil Procedure 12(b)–(h).

D. Time Constraints

Motions under Rule 55.27(a) must be made within the time allowed for a responsive pleading or 30 days after service of the last pleading. Motions under Rule 55.27(b) must be made after pleadings are closed but sufficiently before trial so as not to delay the trial. The time for motions under Rule 55.27(e) is the same as for motions under Rule 55.27(a).

E. Comment

1. Asserting Defenses and Objections

While Rule 55.27(a) generally requires the pleader to raise all defenses at the first opportunity, it also provides the option of raising certain defenses by motion before fully answering. Faris v. Dewitt, 947 S.W.2d 847, 850 (Mo. App. S.D. 1997). At the same time, Rule 55.27(a) eliminates most of the common-law rules pertaining to the simultaneous presentation of defenses and the waiver of particular defenses if combined with the answer. For example, at common law, the defense of lack of jurisdiction over the person was waived if not raised by a special entry of appearance and motion to dismiss based solely on that defense. Under Rule 55.27(a), the defense of lack of personal jurisdiction can be raised by motion or included in the answer. In either case, the matter is preserved for appeal. Lovenduski v. McGrain, 69 S.W.3d 80, 85 (Mo. App. W.D. 2001) (objecting by way of a "special appearance" is not required and "serves no useful purpose"); Farris v. Boyke, 936 S.W.2d 197, 203 (Mo. App. S.D. 1996); Chapman v. Commerce Bank of St. Louis, 896 S.W.2d 85, 86–87 (Mo. App. E.D. 1995). After a defendant has raised the alleged lack of personal jurisdiction via a motion under Rule 55.27, the plaintiff has the burden of demonstrating that the court has personal jurisdiction over the defendant. Pohlmann v. Bil-Jax, Inc., 954 S.W.2d 371, 372 (Mo. App. E.D. 1997).

It should be noted that a plaintiff is not required to respond to a motion to dismiss. Nisbet v. Bucher, 949 S.W.2d 111, 113 (Mo. App. E.D. 1997).

2. Motion for Judgment on the Pleadings

A motion for judgment on the pleadings asserts that the moving party is entitled to judgment as a matter of law, based on the admitted allegations and assuming the truth of all well-pleaded facts in the opponent's pleadings. Main v. Skaggs Cmty. Hosp., 812 S.W.2d 185, 186 (Mo. App. S.D. 1991); Angelo v. City of Hazelwood, 810 S.W.2d 706 (Mo. App. E.D. 1991). It differs from a motion to dismiss for failure to state a claim on which relief can be granted in that it considers all pleadings on file, instead of merely the pleading seeking relief. It differs from a motion for summary judgment in that it considers only pleadings, rather than pleadings and other...