(SCR 06-11)

In the Matter of the Amendment of SDCL 15-6-12(b)




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OF SDCL 15-6-12(b) RULE 06-11
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    A hearing was held on February 16, 2006, at Pierre, South Dakota, relating to the amendment of SDCL 15-6-12(b), and the Court having considered the proposed amendment, the correspondence and oral presentations relating thereto and being fully advised in the premises, now, therefore, it is

    ORDERED that SDCL 15-6-12(b) be and it is hereby amended to read in its entirety as follows:

     15-6-12(b).   Manner of presenting defenses and objections. 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:

             (1)      Lack of jurisdiction over the subject matter;

             (2)      Lack of jurisdiction over the person;

             (3)      Insufficiency of process;

             (4)      Insufficiency of service of process;

             (5)      Failure to state a claim upon which relief can be granted;

             (6)      Failure to join a party under § 15-6-19.

     A motion making any of these defenses shall be made before pleading if a further pleading is permitted. 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, he the party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading 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 § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

    IT IS FURTHER ORDERED that this rule shall become effective July 1, 2006.

    DATED at Pierre, South Dakota, this 17th day of March 2006.