The First-Response Rule

The First-Response Rule

A defendant keeps a personal-jurisdiction objection only by putting it in the first response to the complaint. Rule 12(h)(1) says so in two subparts.¹ Under subpart (A), a party waives the defense by omitting it from a Rule 12 motion in the circumstances Rule 12(g)(2) describes, which means a Rule 12 motion that could have raised the defense and did not.² Under subpart (B), a party waives the defense by failing either to make it by motion under Rule 12 or to include it in a responsive pleading or in an amendment that Rule 15(a)(1) allows as a matter of course.³ Read together, the subparts require that the Rule 12(b)(2) objection⁴ appear in the defendant’s first Rule 12 response, and an objection missing from that response is lost.

The court in Hunter v. Serv-Tech, Inc. put the rule in these terms: defendants who want to raise objections to personal jurisdiction, venue, or service of process must do so in their first response, either a Rule 12 motion to dismiss or an answer, or the omitted defense is waived.⁵ Which filing counts as the first response depends on what the defendant files first. A defendant who files a pre-answer Rule 12 motion makes that motion the first response, and the objection belongs in it. A defendant who files no pre-answer motion and goes straight to the answer makes the answer the first response, and the objection belongs there. The defense-in-the-answer method is open, but only to a defendant who has made no Rule 12 motion at all.⁶

Opinions, Hunter among them, sometimes say the objection must appear in the first responsive pleading, even while counting a motion to dismiss as a qualifying first response. The phrase is imprecise. A responsive pleading to a complaint is an answer, but a motion is a request for a court order and is not a pleading. The accurate phrase is the first response to the complaint, which covers both forms.⁷

A Rule 12 motion on any ground counts as the first response, even one that has nothing to do with jurisdiction. A defendant who moves only to dismiss for failure to state a claim has made the first response, and if the jurisdictional objection was available, leaving it out of that motion forfeits it. The defendant cannot add it to the answer that follows.⁸ The result holds even for a defendant with no connection to the forum. Sued in a Texas federal diversity action, a defendant with no Texas contacts who moves under Rule 12(b)(6) alone has waived dismissal for lack of personal jurisdiction, because the defense was “available” when the motion was filed: the defendant knew the relevant facts.⁹ Availability cuts both ways. A defendant whose service objection is that no copy of the complaint was ever served cannot know what the complaint alleges. A failure-to-state-a-claim defense was therefore not yet “available” when that first motion was filed, and a second pre-answer motion on that ground may be allowed.¹⁰

In each scene the question is whether the objection appeared in whatever the defendant filed first. Merits arguments do not forfeit it, and a single motion may properly combine a jurisdictional objection with a failure-to-state-a-claim argument.¹¹ A defendant who first moves only on failure to state a claim and then tries a second motion on venue, notice, or personal jurisdiction finds those later objections held waived.¹² A problem on this topic therefore starts with what the defendant filed first and only then asks what that filing said.

The first-response treatment extends to three other defenses that Rule 12(b) lists with personal jurisdiction: improper venue, insufficient process, and insufficient service of process.¹³ Each is lost by the same omission. A defendant whose first motion challenges only service of process cannot later add an objection to venue, because that objection was available when the complaint arrived and was lost, waived, gone forever once it was left out.¹⁴

The Rules single out these four defenses because each concerns the court the plaintiff chose or the way the case was begun, and the defendant can see the problem as soon as the complaint arrives. A defendant prejudiced by one of these preliminary defects should become aware of it when the complaint is served. A defendant sued in a state that has no personal jurisdiction over her can tell from the caption, which shows where the suit was filed, and from the facts alleged, which show the events that gave rise to the claim.¹⁵ Venue belongs in the group because it protects the parties, which makes it more like personal jurisdiction than like a limit on the court’s own power. A party waives a venue objection unless it is made at an appropriate time, usually quite early.¹⁶ These defects also tend to delay a case rather than end it, because the plaintiff cures them by picking the right court or perfecting service. The waiver rule reflects a view that such defenses should be decided up front, in time for a cure or a refiling in a proper court.¹⁷

Waiting would also cost the court and the plaintiff. If the objection could be held in reserve, the parties might litigate the suit to the end and then learn that the court had no right to hear it. A defendant might even keep the objection in her back pocket and spring it if things went badly on the merits. Requiring immediate assertion prevents that tactic and the waste of judicial resources that goes with it.¹⁸ The rule stays demanding even when the complaint does not settle the facts. Whether a corporate defendant is subject to personal jurisdiction in the district, for purposes of venue, may be impossible to tell from the complaint, yet the rule still requires immediate assertion. A defendant in doubt should raise the defense, subject to the limits of Rule 11, or move under Rule 6(b) for more time before responding.¹⁹

Failure to state a claim stands on different footing. It goes to the merits of the plaintiff’s claim rather than to the chosen court or the manner of beginning suit, and a defendant who omitted it from an earlier pre-answer motion may still raise it in the answer, because Rule 12(h)(2)(A) permits it in any pleading allowed under Rule 7(a).²⁰ A later section returns to that contrast.