Did you know that a defendant can move for summary judgment before filing an Answer?

Plaintiffs sued a bank to prevent foreclosure. The bank moved to dismiss; the trial court dismissed most of the Complaint’s 36 counts but not all of them. The bank did not file an Answer within twenty days of that ruling; instead it moved for summary judgment on the remaining counts. Plaintiffs applied for default. The trial court denied default and granted summary judgment

Plaintiffs argued that under Rule 12 a summary judgment does not extend the time to answer. The Court of Appeals affirms the trial court for two reasons.

First, “Rule 55(a) governs defaults, not Rule 12.” Rule 55 allows default when a defendant does not “plead or otherwise defend.” A summary judgment motion is not a pleading but qualifies as otherwise defending.

Second, “even if Rule 12 were relevant” summary judgment does indeed extend the time to answer. How? Because a motion to dismiss extends the time and can be converted to summary judgment. So, says the court (and manages to find some commentators on federal law to agree with it), there’s no reason not to treat a motion originally brought for summary judgment the same way.

The court seems to think it straightforward that a Rule 56 motion is a Rule 12 motion because a rule 12 motion can under some circumstances become a Rule 56 motion. One wonders why, if that’s what Rule 12 means, it doesn’t say so. Perhaps its drafters paid some attention to the structure of the procedures they were drafting, or perhaps they had in mind the complications – both procedural and substantive – that can arise from allowing pre-Answer summary judgment. In any event, it has now been allowed.

(link to opinion)