RULE 40. DEFENSES AND OBJECTIONS MADE BY PLEADING OR MOTION
- Every defense, in law or fact, to a claim for relief in any
pleading 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: (a) lack of jurisdiction,
and (b) failure to state a claim upon which relief can be granted.
If a pleading sets forth a claim for relief to which the adverse
party is not required to file a responsive pleading, then such
party may assert at the trial any defense in law or fact to that
claim for relief. If, on a motion asserting failure to state a
claim on which relief can be granted, matters outside the pleading
are to be presented, then the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 121, and the parties shall be given an
opportunity to present all material made pertinent to a motion
under Rule 121.
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