Three defenses are gone if they aren’t in your client’s first motion or first responsive pleading: lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. Minn. R. Civ. P. 12.08(a) says so outright, and the loss is silent. Nothing in the file tells you it happened until the other side points it out six months later.
Rule 12 usually gets taught as the motion-to-dismiss rule. That’s the smaller half of it. The bigger half is sorting: it drops every defense into one of three groups, and each group has its own deadline and its own price for missing it.
Which defenses are waived if you leave them out of the first response?
Three, and Rule 12.08(a) names them:
A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (1) if omitted from a motion in the circumstances described in Rule 12.07, or (2) if it is neither made by motion pursuant to this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15.01 to be made as a matter of course.
The two clauses catch you in different ways.
Clause (1) is the consolidation trap, and it works through Rule 12.07. If you bring any Rule 12 motion and leave out a then-available defense that the rule permits to be raised by motion, Rule 12.07 provides that “that party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 12.08(b) hereof on any of the grounds there stated.” Say a defendant moves to dismiss for failure to state a claim and says nothing about the summons having been left with a neighbor. That defendant has spent the motion. Everything available goes in, or it’s forfeited.
Clause (2) is the do-nothing trap. If no Rule 12 motion is made, the three defenses have to show up in the responsive pleading, or in an amendment to it that Rule 15.01 permits as a matter of course.
You don’t have to choose between motion and answer. Rule 12.02 provides that “[n]o defense or objection is waived by being joined with one or more defenses or objections in a responsive pleading or motion.” Plead the defense in the answer and move on it later. That’s the ordinary, safe course.
Which defenses survive to the end of the case?
Three more, under Rule 12.08(b), plus subject matter jurisdiction under 12.08(c).
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 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered pursuant to Rule 7.01, or by motion for judgment on the pleadings, or at the trial on the merits.
Subject matter jurisdiction can’t be waived at all: “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.” Rule 12.08(c). That’s a duty on the court, not just a right a party holds, and it doesn’t run out.
So here’s the triage. Anything about how the case got to this defendant (personal jurisdiction, process, service) is on the clock. Anything about whether the claim is any good keeps.
What are the six defenses that may be raised by motion?
Rule 12.02 starts with the default and then carves out an option:
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:
The list has six entries: (a) lack of jurisdiction over the subject matter; (b) lack of jurisdiction over the person; (c) insufficiency of process; (d) insufficiency of service of process; (e) failure to state a claim upon which relief can be granted; and (f) failure to join a party pursuant to Rule 19. Then Rule 12.02 adds an order of operations: “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.”
If you’re coming in from out of state, look at what’s missing from that list. Improper venue isn’t one of the six. In Minnesota, a defendant’s change of venue as of right runs on a statutory track with its own clock. Minn. Stat. § 542.10 provides that where “the county designated in the complaint is not the proper county, the action may notwithstanding be tried therein unless, within 20 days after the summons is served, the defendant demands in writing that it be tried in the proper county.” The statute requires that the demand come with an affidavit, and that “[t]his demand and affidavit, with proof of service thereof upon the plaintiff’s attorney, shall be filed with the court administrator in the county where the action was begun within 30 days from the date of its service…” The sentence goes on from there to describe the automatic change of venue that follows, which isn’t the point here. The point is that the 20-day demand window is shorter than the answer deadline. That’s the whole problem with it.
How long is the deadline to answer or move?
Twenty-one days. “Defendant shall serve an answer within 21 days after service of the summons upon that defendant unless the court directs otherwise pursuant to Rule 4.043.” Minn. R. Civ. P. 12.01. The same 21 days applies to an answer to a cross-claim and to a reply to a counterclaim pleaded in an answer.
Two things extend or reset that period.
One is how you were served. Under Rule 6.01(e), where a document is served by United States Mail, “3 days shall be added to the prescribed period,” and where service is by any other means and accomplished after 5:00 p.m. local Minnesota time on the day of service, one additional day is added.
The other is a Rule 12 motion. Rule 12.01 provides that serving a motion permitted under the rule changes the response period as follows, unless a different time is fixed by court order: if the court denies the motion or postpones disposition until trial on the merits, the responsive pleading is served within 14 days after service of notice of the court’s action; if the court grants a motion for a more definite statement, the responsive pleading is served within 14 days after service of the more definite statement.
Need more time? Rule 6.02 lets the court enlarge a period for cause shown, on a request made before the period runs out, or after it runs out on a showing of excusable neglect. It carves four rules out of enlargement: 4.043, 59.03, 59.05, and 60.02, “except to the extent and under the conditions stated in them.” Rule 12.01 isn’t one of them. See computing time under Rule 6.
Can you fix an omitted defense by amending the answer?
Rule 12.08(a)(2) says the defense is preserved if it’s included in “an amendment thereof permitted by Rule 15.01 to be made as a matter of course.” So there’s a cure. But it only works inside Rule 15.01’s as-of-course window, and which branch of that window you’re in depends on your own answer.
Rule 15.01 permits a party to amend a pleading once as a matter of course “at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it no later than 21 days after it is served.”
Rule 7.01 tells you which branch you’re in. It allows a complaint and an answer, “a reply to a counterclaim denominated as such,” and an answer to a cross-claim, and provides that “[n]o other pleading shall be allowed except that the court may order a reply to an answer.” So an answer with a counterclaim denominated as such has a responsive pleading coming. A bare answer doesn’t, which puts it in the 21-day branch and adds the condition that the action not be on the trial calendar yet. Count from the date the answer was served, not the date somebody noticed the omission. The mechanics of amendment, including relation back, are in amending pleadings under Rule 15.
When does a Rule 12 motion become a summary judgment motion?
The moment matters outside the pleading are presented and the court doesn’t exclude them. Rule 12.02:
If, on a motion asserting the defense that the pleading fails 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 Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Rule 12.03 carries the identical conversion language for a motion for judgment on the pleadings.
Once the condition is met, conversion isn’t optional. The rule says the motion “shall be treated” as one for summary judgment. The trigger is presentation plus non-exclusion, so a court that wants to keep the motion on the pleadings excludes the outside material.
Every party gets a reasonable opportunity to present Rule 56 material. If you’re the non-movant and an affidavit shows up attached to a motion to dismiss, say so and ask for that opportunity. Don’t try to match affidavits on the existing schedule.
And the record requirements change. Minn. Gen. R. Prac. 115.03(d) adds memorandum content for summary judgment motions (a statement of issues, an identification of the documents comprising the record, and a recital of material facts with specific citations) and closes with this: “These additional requirements also apply to a motion under Minn. R. Civ. P. 12 if factually based.” Attach exhibits, and you’ve signed up for those requirements. See summary judgment under Rule 56.
What track does a Rule 12 motion run on, and how long is the brief?
The dispositive track. Minn. Gen. R. Prac. 115.01(a)(1) provides that dispositive motions “include motions to dismiss a party or claim, motions for summary judgment and motions under Minn. R. Civ. P. 12.02(a)-(f).” Under Rule 115.03, the moving party serves and files the notice of motion and motion, proposed order, any affidavits and exhibits, and the memorandum of law at least 28 days before the hearing; the responding party serves and files its memorandum and supplementary affidavits and exhibits at least 14 days before the hearing; and a reply memorandum, “limited to new legal or factual matters raised by an opposing party’s response to a motion,” is served and filed at least 7 days before the hearing.
Rule 115.05 caps a memorandum on either track at 35 pages, exclusive of the 115.03(d)(3) fact recital, and provides that where a reply is filed “the cumulative total of the original memorandum and the reply memorandum shall not exceed 35 pages, except with permission of the court.”
Those are floors. The assigned judge’s standing orders and practice pointers often add requirements the rules don’t have (courtesy copies, chambers procedures, calendaring, formatting), and they control your filing. They’re published on the district’s page at mncourts.gov. Read them before you draft the motion, not after. More on this in motion practice under Rule 115.
What else is in Rule 12 that people forget?
Three smaller provisions.
Rule 12.04 entitles any party to have the Rule 12.02 and 12.03 defenses “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.” You can force the issue early.
Rule 12.05 allows a motion for a more definite statement, or for compliance with Rule 10.02, where a pleading “is so vague and ambiguous that a party cannot reasonably be required to frame a responsive pleading.” The motion has to point out the defects complained of and the details desired. If the order isn’t obeyed within 14 days after service of notice of it, or another time the court fixes, the court may strike the pleading.
Rule 12.06 permits a motion to strike before responding to a pleading, or, if no responsive pleading is permitted, within 21 days after service of the pleading, or on the court’s own initiative at any time. The grounds are a pleading not in compliance with Rule 11, which may be stricken as sham and false, or any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
One habit heads off most Rule 12 waivers. Before the first response goes out, run the 12.02 list against the file and put every available defense in the motion or in the answer. Joining defenses costs nothing under 12.02. Leaving one out costs you the defense under 12.07. Related mechanics are in dismissal under Rule 41.
Madgett Law, LLC associates with lawyers on Minnesota civil matters. If you’ve got a case here and want local counsel, send us a message.
Sources: Minn. R. Civ. P. 12.01 (time to answer; effect of a Rule 12 motion), 12.02 (defenses that may be raised by motion; joinder without waiver; conversion to summary judgment), 12.03 (judgment on the pleadings; conversion), 12.04 (preliminary hearing), 12.05 (more definite statement; 14-day compliance), 12.06 (motion to strike; 21 days), 12.07 (consolidation of defenses in motion), 12.08(a), (b), (c) (waiver and preservation); Minn. R. Civ. P. 6.01(e) (additional time after mail service and after 5:00 p.m. service), 6.02 (enlargement; excepted rules); Minn. R. Civ. P. 7.01 (pleadings allowed); Minn. R. Civ. P. 15.01 (amendment as a matter of course); Minn. Gen. R. Prac. 115.01(a)(1) (dispositive motions defined), 115.03(a)–(d) (dispositive motion deadlines; additional summary judgment requirements), 115.05 (page limits); Minn. Stat. § 542.10 (change of venue as of right; 20-day demand, 30-day filing). Rule text: Minnesota Judicial Branch rules of court; Minn. Stat. § 542.10: Office of the Revisor of Statutes; August 10, 2026.
This article is general legal information about Minnesota procedure, not legal advice. Reading it creates no attorney–client relationship, and no outcome is promised or implied.