Section 4.26 Answer, Defenses, and Initial Motions

• Library: Civil Trial Practice 2015 Supp

E. (§4.26) Answer, Defenses, and Initial Motions

Before even considering whether to file an answer to a petition, Rules 55.25, 55.27, and 51.045 should be consulted. These rules set forth what defenses must be raised in the initial responsive pleading, whether by motion or answer, and whether the filing of any motion extends the time for filing a responsive pleading. Care should be taken that any motion filed complies with the rules of procedure or cases interpreting the propriety of and form of motions. For example, if matters including documents are attached to a motion to dismiss (with the exception of one contesting the subject matter jurisdiction of the court), the motion can convert to a motion for summary judgment; if the motion does not comply with Rule 74.04 regarding form, any grant of the motion to dismiss is subject to reversal.

Rule 55.27(a) sets forth defenses that must be asserted in a responsive pleading and those that may, at the pleader’s option, be made by motion, including:

(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.

Currently, there exists some confusion and perhaps traps for the unwary regarding venue. Rule 55.27(a) once contained the defense of improper venue, but venue is now addressed in Rule 51.045. The trap lies in the interpretation of Rules 55.27(g), 51.045, and 55.25.

Any objection to improper venue must be raised by motion under Rule 51.045 within the time for filing a responsive pleading. Rule 55.25 extends the time to file a responsive pleading if a motion is filed under Rule 55.27 but not under Rule 51.045. Because venue is no longer considered a defense and has been removed from Rule 55.27(a), a defendant who has an objection to venue must file a motion under Rule 51.045 but must also either file a motion under Rule 55.27(a) to dismiss the action or file an answer. The failure to file a Rule 55.27(a) motion or an answer can result in a...