Neb. Sup. Ct. R. 6-1112

As amended through November 11, 2024

Section 6-1112 - [Effective 1/1/2025] Defenses and objections: - when and how presented; by pleading or motion; motion for judgment on the pleadings; consolidating motions; waiving defenses; pretrial hearing

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer within 30 days after being served with the summons and complaint or completion of service by publication.

(B) A party must serve an answer to a counterclaim or cross-claim within 30 days after being served with the pleading that states the counterclaim or cross-claim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) Effect of a Motion. Unless the court specifies a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 21 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 21 days after the more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject matter jurisdiction;

(2) lack of personal jurisdiction;

(3) pendency of another action that involves the same subject matter and parties;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Neb. Rev. Stat. § 25-323.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed - but early enough not to delay the trial - a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under § 6-1112(b)(6) or § 6-1112(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Neb. Rev. Stat. §§ 25-1330 to 25-1336. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before serving a responsive pleading and must point out the defects complained of and the details sought . If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on a motion made by a party either before responding to the pleading or, if response is not allowed, within 30 days after being served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in § 6-1112(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in § 6-1112(b)(2), (b)(4), and (b)(5) by:

(A) omitting it from a motion in the circumstances described in § 6-1112(g)(2); or

(B) failing either:

(i) to make it by motion under this rule; or

(ii) to include it in a responsive pleading or in an amendment allowed by § 6-1115(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a party under Neb. Rev. Stat. § 25-323, or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under § 6-1107(a);

(B) by motion under § 6-1112(c); or

(C) at trial.

(3) Pendency of Another Action or Lack of Subject Matter Jurisdiction. If the court determines at any time that another action is pending that involves the same subject matter and parties, the court may dismiss or stay the action or issue any other appropriate order. If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in § 6-1112(b)(1)-(7) - whether made by a pleading or by motion - and a motion under Rule 12 § 6-1112(c) must be heard and decided before trial unless the court orders a deferral until trial.

Neb. Sup. Ct. R. 6-1112

Amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-1112

[1] Subpart (a) sets the time periods for serving various motions and pleadings. The subpart was originally promulgated in 2002. In 2009, the time periods stated in Rule 12(a) of the Federal Rules of Civil Procedure were reset in multiples of 7 - in other words, 7 days, 14 days, 21 days, or 28 days. Using multiples of seven ensures that the "final day falls on the same day of the week as the event that triggered the period - the 14th day after a Monday, for example, is a Monday. See Fed. R. Civ. P. 12, Advisory Committee Notes to the 2009 Amendment.

[2] The 2024 Amendments followed much the same approach. Time periods that were shorter than 30days were reset to multiples of seven. The 30-day time period for serving a responsive pleading was retained. Although the Federal Rule 12(a) sets the time period for serving a responsive pleading at 21days, the time period in Nebraska has been 30 days since Nebraska first became a State.

[3] There was a minor anomaly in the original version of subpart (a). The time period for serving a court-ordered reply to an answer was 15 days after service of the order. By contrast, the time period for serving a responsive pleading after the denial of a motion to dismiss or grant of a motion for a more definite statement was 20 days. There is no obvious reason for the different time periods. Therefore, the 2024 Amendments eliminated the anomaly by setting 21 days as the time period for both a court-ordered reply [subpart (a)(1)(C)] and a responsive pleading after the denial or grant of a § 6-1112 motion [subpart (a)(2)].

[4] Subpart (a) does not set the time for a plaintiff to act if the court grants a motion to dismiss or quash filed pursuant to subpart (b). If the defect can be corrected - for example, by serving an amended complaint to correct a defect in the statement of the claim or by serving the summons and complaint again to correct a defect in service - then the court must set the time for the plaintiff to act.

[5] The defense of another action pending can be raised when there are two pending actions that involve the same subject matter and the same parties. The defense is based on the doctrine of jurisdictional priority: as between two courts of concurrent jurisdiction, the first court that acquires jurisdiction should retain it to the exclusion of the other. See Jesse B. v. Tylee H., 293 Neb. 973, 987 (2016).

[6] Prior to the adoption of the Nebraska Court Rules of Pleading, the defense of another action pending could have been raised by demurrer when the defect appeared on the face of the petition. Otherwise, it could have been raised in the answer. The defense was not mentioned in the original version of § 6-1112, however. As a result, it was unclear how a party could properly raise the defense. The 2024 Amendments provided the missing clarity by inserting the defense into subpart (b)(3).

[7] Subpart (b)(3) was empty at the time. The reason was that the mechanics of raising the defense of improper venue are different in federal and state court. Rule 12(b)(3) of the Federal Rules of Civil Procedure allows the defense of improper venue to be raised by a pre-answer motion to dismiss. In Nebraska, however, the defense must be raised by a motion to transfer. See Neb. Rev. Stat § 25-403.01. Because the defense is not raised by a pre-answer motion to dismiss, the drafters of the Nebraska Court Rules of Pleading left subpart (b)(3) empty so that the numbering of the remaining subpart (b) defenses would be the same as it is in Federal Rule 12(b).

[8] Subpart (b)(7) originally referred the defense of failure to join a necessary party. At the time that subpart (b)(7) was promulgated, the Supreme Court used the terms "indispensable party" and "necessary party" interchangeably. In 2017, however, the court recognized a distinction between indispensable and necessary parties. The court stated that both indispensable and necessary parties have an interest in the subject matter of the action. The difference between the two is that the interest of an indispensable party will be affected by the judgment and the interest of a necessary party will not be. See Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 91 (2017).

[9] Even though there is a distinction between the two types of parties, the basis of the defense is the same: the missing party should be joined. Therefore, subpart (b)(7) was amended in 2024 to read "failure to join a party under Neb. Rev. Stat. § 25-323." The statutory reference was used because § 25-323 governs the joinder of both indispensable and necessary parties.

[10] Subpart (f) authorizes a motion to strike particular parts of a pleading. By contrast, Neb. Rev. Stat.§ 25-913 authorizes a motion to strike an entire pleading.

[11] Subpart (g)(2) prohibits successive pre-answer motions. If a party files a motion that raises a defense or objection under § 6-1112, the party must include any other defenses or objections that the rule allows to be raised by motion instead of raising them in a second pre-answer motion. The purpose of the prohibition is to eliminate the ability of a party to drag out the pleading stage of a case by raising defenses and objections piecemeal. If the party omits a defense or objection that was available to the party when it filed its motion, the party cannot file a second motion to raise the omitted defense or objection.

[12] For example, if a party unsuccessfully files a pre-answer motion to dismiss for failure to state a claim on one ground, the party cannot subsequently file a second pre-answer motion to dismiss for failure to state a claim on different ground. That is true even though the defense of failure to state a claim is not waived by failing to raise it in an earlier motion. Instead of filing a second motion to dismiss, the party must raise the other ground in a manner authorized by subpart (h)(2). To allow the party to raise the other ground by filing a second pre-answer motion to dismiss would be contrary to the language and purpose of subpart (g)(2).

[13] The defense of another action pending is not jurisdictional. The Supreme Court has indicated, however, that an appellate court may raise the defense on an appeal even though the parties did not raise it below. See Brinkman v. Brinkman, 302 Neb. 315, 319 (2019). That indicates that the defense is one that cannot be waived.

[14] Subpart (h)(3) provides that a court must dismiss the action if it determines that it lacks subject matter jurisdiction. Subpart (h)(3) takes a different approach for the defense of another action pending by giving the court the discretion to dismiss or stay the action rather than mandating that the court do so.