Concept
Ways to Raise the Defense
Waiver of personal jurisdiction
Ways to Raise the Defense
A federal defendant has two ways to put a personal jurisdiction objection before the court: a motion filed before the answer, or a statement of the defense in the answer itself. Rule 12(b)(2) lists lack of personal jurisdiction among the defenses that may be raised by pre-answer motion,1 and Rule 12(b) also directs that every defense be asserted in the responsive pleading, with a party free to assert the listed defenses by motion instead.2 The first-response rule from the previous section governs both vehicles: the objection must appear in the first Rule 12 filing the defendant makes.
Either vehicle preserves the defense when it carries the objection and is the defendant's first response, so the choice between them is tactical. A defendant with no tie to the forum may want the judge to hear the objection before she takes any position on the merits. A defendant whose objection is doubtful, or only one of several defenses, may prefer a single answer that raises everything at once. A first filing that omits the objection is still a first response, and the first-response rule treats the defense as given up.
Federal practice thus polices when the objection appears, not whether it appears alone. A single filing may combine a jurisdictional objection with merits arguments. That freedom is recent, and the first subsection explains it by starting with the common-law device that federal practice replaced. The next two subsections take the motion and the answer in turn.
No Special Appearance Needed
At common law, a defendant who wanted to contest personal jurisdiction did so by special appearance. A special appearance was an appearance made for the exclusive purpose of challenging personal jurisdiction.3 Defendants in many of the classic personal jurisdiction cases, among them International Shoe Co. v. Washington, Shaffer v. Heitner, and World-Wide Volkswagen Corp. v. Woodson, challenged jurisdiction by filing a special appearance.4
The device solved a catch-22. A defendant who appeared to contest jurisdiction could otherwise be served at the courthouse, and that service would establish the very jurisdiction she was contesting. As long as she appeared “specially,” the plaintiff could not do that. International Shoe noted that the company had appeared “specially” for this reason.5
Courts enforced the device strictly. The rationale was that a defendant who asserted any defense other than jurisdiction acknowledged the court's authority to decide the case and thereby submitted to it.6 The strictness caught careless defendants. In Davis v. Eighth Judicial District of Nevada, the defendants objected to personal jurisdiction but also opposed the plaintiff's motion to amend the complaint, and the court held that they had made a “general appearance and submitted themselves to the jurisdiction of the district court.”7 In Koplin v. Saul Lerner Co., the defendant entered a special appearance to object to jurisdiction and also moved to strike the complaint for vagueness. By raising the vagueness issue, the court held, this hapless defendant had addressed a matter going to the merits and had submitted to the court's jurisdiction.8 Vagueness has nothing to do with whether the court can reach the defendant, yet the court read the argument as acceptance of the forum.
Rule 12(b) removes the trap in a single sentence: “No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.”9 Rule 12(g)(1) adds that a motion under Rule 12 may be joined with any other motion the rule allows.10 A defendant who joins her personal jurisdiction objection with other defenses therefore does not abandon it.11 Put Koplin's defendant in federal court, and a motion that asks for dismissal for lack of personal jurisdiction and also attacks the complaint on other grounds keeps the jurisdictional objection alive. The conduct is the same in both courts, a jurisdictional objection and a merits request in one paper, and only the forum's rules differ. A response that treats a joined merits argument as consent to the forum has applied the old rule to a federal problem.
Rule 12(b) also changes the vehicle for the objection. Under the strict approach, an answer on the merits could never carry the jurisdictional objection, because answering waived it. The federal rules let the defendant place the objection in her answer alongside her defenses on the merits.12
Only a few states still require a defendant to challenge personal jurisdiction by special appearance; Texas Rule of Civil Procedure 120a is an example.13 A state-court problem therefore begins with one question: does the state follow the federal joinder rule, or does it still demand a strict special appearance?
Federal practice keeps one feature of the old device, and that feature is timing. Under either approach the objection must be raised immediately or it is lost, and a defendant who answers on the merits and later decides to challenge jurisdiction has waived the objection by failing to raise it at the outset.14 The special appearance made the objection the defendant's opening move by definition. Rule 12 reaches the same early timing by treating an objection left out of the first response as lost.15 That early timing is what lets the Rules be generous about joinder. The court and the plaintiff learn at the start whether the forum is contested, and the defendant cannot keep the objection in her back pocket and spring it later if things go badly on the merits.16 The line that matters runs between joining the objection and omitting it, not between joining it and standing alone.
The Pre-Answer Motion
The pre-answer motion is the first vehicle for the objection, and the defendant is free to skip it. Rule 12(b) provides that the listed defenses “may” be raised by pre-answer motion, and each may be raised in the answer instead.18 A defendant who does choose the motion must file it at the right moment, because a motion asserting these defenses must be made before pleading if a responsive pleading is allowed.19 The name is literal. Once the answer is on file, no time before pleading remains, and the defense survives only if the answer contains it.
The motion carries a tactical advantage. A defendant who moves to dismiss under Rule 12(b) need not answer the complaint until the court decides the motion, and if she prevails she may never have to answer. That matters because an answer may require the defendant to admit damaging allegations in the complaint or undertake substantial factual investigation.20 Either a motion or the answer preserves the defense, but only a motion to dismiss lets the defendant avoid all engagement with the contested facts of the plaintiff's claim if her challenge proves correct.21 Rule 12(b) serves that purpose by letting the defendant raise these defenses before the factual merits of the case begin to be addressed through the answer.22
The motion does put some facts in play, but they are facts about the forum: where the defendant operates and what she did there. If the motion, the response, and the accompanying affidavits show no disputed material facts, the court can rule without live testimony. If they reveal disputed material facts, the court must eventually resolve them through live testimony, heard either before trial or, when the jurisdictional issue is intertwined with the merits, with the trial itself.23 Either way, the defendant has admitted and denied nothing about the claim.
Choosing the motion changes when the answer is due. Without a motion, the answer is due 21 days after service of the summons and complaint.24 Serving a Rule 12 motion alters that period unless the court sets a different time,25 and the new deadline depends on what the court does with the motion. A deadline problem is best worked as a sequence of dates.
A denial does not waive the objection. After an adverse ruling the defendant usually must defend the case on the merits, and doing so does not give up the jurisdictional objection; she may wait until the end of the case and appeal the ruling then. Federal appeals ordinarily lie only from final judgments, and interlocutory review of an adverse jurisdictional ruling is reserved for extraordinary cases, through a certified interlocutory appeal or a writ of mandamus.30
The most frequent error is treating the motion as available whenever the defendant happens to think of it. A defendant who has already answered has no pre-answer motion left to make, and the objection survives only if the answer itself contained it.31
The motion route carries a price. Rule 12(g) requires a defendant who makes a pre-answer motion to include in it every Rule 12(b) defense then available, and Rule 12(g)(2) bars a second pre-answer motion on a defense that was available but omitted.32 The duty reaches only defenses that were “available” when the first motion was filed.33 The omnibus motion rule later in this chapter explains how that duty operates.
The Answer
A defendant who files no pre-answer motion preserves the personal jurisdiction defense by stating it in the answer. Rule 12(b) makes the responsive pleading the ordinary home for every defense and lets a party assert the listed defenses by motion instead.35 Lack of personal jurisdiction is a listed defense,36 so a defendant who does not want to challenge jurisdiction before answering may include the challenge in her answer.37 Rules 12(g)(2) and 12(h)(1) govern the situation in which a defense is made by motion before the answer, and a defendant who answers first faces no consolidation duty before the answer.38
The answer-first defendant faces one demand: the objection must be in the answer. Under Rule 12(h)(1)(B)(ii), the defense is preserved when the defendant includes it in a responsive pleading, or in an amendment that Rule 15(a)(1) allows as a matter of course.39 Writing the objection into the answer is enough. Federal pleading is notice pleading, and a defense pleaded in the answer is preserved for later argument by later motion.40 The answer tells the plaintiff and the judge, in the defendant's first paper, that the forum is contested.
The answer must also arrive on time, and Rule 12(a)(1)(A) supplies two clocks. The ordinary period is 21 days after the defendant is served with the summons and complaint. A defendant who timely waives service under Rule 4(d) has 60 days after the request for a waiver was sent, or 90 days if the request was sent to a defendant outside any judicial district of the United States.41 The waiver periods run from the day the request was sent, not from service. The longer periods change only the date on which the answer is due, and a defendant who uses the extra weeks must still write the objection into the answer. A defendant who first serves a Rule 12 motion follows the timetable described in the preceding subsection. The answer can be the place where the objection first appears only if no Rule 12 motion came earlier,42 so the answer route as a first response belongs to the defendant who has made no motion.
Answering costs the defendant an early commitment. She must respond to the allegations at once, and an answer may require her to admit damaging allegations or undertake substantial factual investigation.43 A defendant with serious doubts about the forum may prefer to learn first whether the case will go forward. The cost is effort and early exposure, not the defense itself, because a federal defendant may raise the personal jurisdiction objection in the answer along with other defenses.44
The objection must actually appear in the pleading, and that requirement is where answering defendants lose the defense. An exam stem may report that a defendant intends to contest personal jurisdiction and then describe the answer, so the question to ask is whether the answer itself says so. The Rule preserves the defense through what the first response contains, and an intention, however openly voiced, is not a pleading. A defendant who answers on the merits and only later decides to challenge jurisdiction has waived the objection by failing to raise it at the outset,45 and the court will not entertain a later motion raising it. The same consequence attaches to the neighboring defenses. A defendant who left a venue objection out of her pre-answer motion lost it for good,46 and objections to venue or to the manner of service are deemed acquiesced in when the defendant raises them neither in a pretrial motion nor in the answer.47
Pleading the defense preserves it, but preserving a defense is not the same as winning it. An answer by itself asks the court to do nothing, so a defendant who has pleaded the objection must still get the court to act on it. The later section on losing the defense after answering takes up that step.48