Concept
Preserving the Defense
Sufficiency of service of process
Preserving the Defense
A defendant can hold a winning Rule 12(b)(5) objection and still lose it. Rule 12 lists “insufficient service of process” among the defenses a defendant may assert, and the same rule controls when each defense must be raised, how defenses combine, and when a defense is waived.1 A defendant who misses the occasion forfeits the objection, however plainly the plaintiff’s delivery fell short of Rule 4.
“Waiver” carries a second meaning here, and the two must not be confused. Waiver of service under Rule 4(d) is an agreement: the plaintiff requests it, the defendant signs and returns the form, and formal delivery of the summons is dispensed with before the defendant has responded to the suit.2 Waiver under Rule 12(h)(1) is a penalty. The defendant agrees to nothing; the defense disappears because the defendant left it out of a motion or pleading where the Rules required it to appear.3 One waiver is a bargain struck at the plaintiff’s invitation. The other is a loss the Rules impose afterward.
The Rules demand early action because of what a service defect is. A defendant should know from the start whether it was served properly, so the objection is never hidden. The defect also tends to delay a suit rather than end it, since the plaintiff can serve again, and the waiver rule reflects a judgment that such defenses should be decided up front, in time for a cure.4 A defendant allowed to hold the objection in reserve could spring it after the cure had become impossible, and a second delivery would turn into a dismissal.
Four questions follow, in the order a defendant meets them. Where may the objection be raised? How many motions may carry it? What happens when it is left out? And may the defendant simply announce that it is saving the objection for later?
Motion or Answer
Rule 12(b) offers a defendant two places to raise a service objection. The general command is that every defense to a claim for relief must be asserted in the responsive pleading if one is required, and the rule adds that a party may assert the defenses it lists by motion instead.5 Insufficient service of process is on that list, so the defendant may move to dismiss before answering or plead the objection in the answer.6
The motion route carries a timing condition: a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.7 A pre-answer motion is an alternative to answering, so a defendant who has already answered has used up the occasion the motion exists to postpone. The rule does let a defendant combine objections freely, because no defense or objection is waived by joining it with others in a motion or in a responsive pleading.8 Defective delivery and doubtful personal jurisdiction can go into one filing.
The motion is optional, but it pays two dividends. First, it postpones the answer. The ordinary period to respond runs 21 days from service,9 but unless the court sets a different time, serving a Rule 12 motion alters that period, and if the court denies the motion or postpones its disposition until trial, the responsive pleading is due within 14 days after notice of the court’s action.10 The 14 days run short because the defendant has already had the time the motion bought. Second, the motion yields an early ruling on the delivery. Service defects are generally curable, and a court that finds service insufficient will ordinarily order proper service before proceeding.11 The defendant gets a ruling, and a plaintiff whose delivery failed gets a second chance to make it.
In the David and Goliath practice problem, David sues Goliath for assault, and Goliath files a timely motion to dismiss for insufficient service of process. Months later the judge denies the motion and notifies the parties.12 Goliath was not late in the interim, because the pending motion had altered his answer date. He now has 14 days from the notice to answer.13 Whether he may use that answer to add defenses he left out of his motion is a question for the omnibus rule, taken up next.
Goliath could have chosen the other route. Had he skipped the motion and answered, he could have pleaded insufficient service of process as a defense in the answer, and the defense would have been preserved without any motion.14 No motion would have been served, so the ordinary answer deadline would govern. The pleaded defense would not sit idle, however. If a party so moves, any defense listed in Rule 12(b)(1)-(7), whether made in a pleading or by motion, must be heard and decided before trial unless the court orders a deferral until trial.15 The defendant who pleads the objection gets the same pretrial ruling the motion would have produced, but must ask for it, and the court keeps its discretion to defer.
Either route can rest on evidence. A court deciding a dilatory defense such as insufficient service is not confined to the pleadings and may consider affidavits or other evidentiary matter, which suits a dispute that turns on who handed the papers to whom.16
Two misreadings cost points here. An answer that says the defendant must file a pre-answer motion overlooks the word may, because the objection can be pleaded in the answer. An answer that gives the defendant 21 days after a denial overlooks the 14 days that run from notice of the ruling. Either way, the objection has to appear in the motion or the answer, and the next sections show what happens to an objection that appears in neither.
The Omnibus Motion Rule
Rule 12(g) governs the defendant who has filed one pre-answer motion and wants to file another. Rule 12(g)(1) begins with a permission: a Rule 12 motion may be joined with any other motion the rule allows.18 Rule 12(g)(2) then limits the sequence. Except as Rule 12(h)(2) or (3) provides, a party that makes a Rule 12 motion “must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.”19 The two paragraphs form the omnibus motion rule. A defendant may assert several defenses, but ordinarily not one at a time: the Rule mandates joinder of the available defenses in one omnibus pre-answer motion and imposes waiver as the penalty for leaving certain ones out.20
The bar reaches Goliath directly. Suppose his first motion, for insufficient service, has been denied, and he now files a second pre-answer motion for lack of personal jurisdiction. He knew his own connections to the forum when he filed the first motion, so the defense was available and omitted, and Rule 12(g)(2) bars the second motion.21
Each half of the rule has a reason. Joinder is safe because no defense or objection is waived by combining it with others in a motion.22 The limit on successive motions prevents delay. A pending Rule 12 motion postpones the answer, as the last part showed, so a defendant allowed one objection per motion could chain several motions together, each needing its own briefing and ruling and each putting off the answer. One consolidated motion makes the court decide every threshold objection in a single pass. Rule 12(h)(1)(A) supplies the penalty: a party waives a Rule 12(b)(2)-(5) defense by omitting it from a motion in the circumstances Rule 12(g)(2) describes.23
The test turns on whether the defense was available when the first motion was filed, and it does not ask whether the defendant thought of the point. A defense is available if the defendant had the complaint and the facts in hand. An objection that the complaint is too vague to answer, for example, is available as soon as the complaint is served, so Rule 12(g)(2) requires the defendant to assert it in the first pre-answer motion.24 The trigger is also broad: the rule speaks of any motion “under this rule,” so the first motion need not concern service at all.25 A defendant may properly combine personal jurisdiction and failure to state a claim in one motion. But a defendant who first moves to dismiss for failure to state a claim and later attacks venue or personal jurisdiction in a second motion finds those objections waived.26
Hunter v. Serv-Tech, Inc., 2009 WL 2858089 (E.D. La. 2009), shows the bar working against a defendant who presented its objections one at a time. Offshore, a defendant in Hunter’s suit, moved on June 19, 2008, to dismiss for insufficient service of process, and the motion added language reserving a later challenge to personal jurisdiction. After that motion was denied as moot, Offshore moved again, this time to dismiss for lack of personal jurisdiction, and the other parties responded that Rules 12(g)(2) and 12(h)(1) had already waived the defense. The court agreed and stated the governing rule plainly: a party that moves to dismiss under Rule 12(b) before answering must consolidate all its Rule 12 defenses into one motion, and a defense omitted from among those in Rule 12(b)(2)-(5) is waived.27 The jurisdiction defense was available on June 19, because a defendant should know from the start whether its alleged conduct involves sufficient contact with the forum.28 Whether the reservation language could rescue the defense is the subject of the final part of this section.
The limit on successive motions has exceptions, and they follow the line the Rules draw between kinds of defenses. Failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense may be raised later in the case,29 and lack of subject-matter jurisdiction requires dismissal whenever the court determines it is missing.30 Take a defendant whose first motion, for insufficient process, was denied. A second pre-answer motion that adds insufficient service of process and failure to state a claim is barred as to both, because both grounds were available the first time. The consequences differ, though. Insufficient service is waived by omission, while failure to state a claim survives, because the defendant may still assert it by answer, by a later motion, or at trial.31
The rule also excuses a defense that was unavailable when the first motion was filed, but for service the excuse is almost never open. A defendant who moved to dismiss for insufficient process was served with papers of some kind, so the defendant knows how they arrived and could have challenged the service in the same motion.32
The first step costs the most points. A student who thinks the limit applies only after a service motion will miss that a first motion for failure to state a claim shuts off personal jurisdiction, venue, and service objections just as firmly.
Waiver by Omission
Rule 12(h)(1) supplies the penalty that Rule 12(g)(2) implies. A party waives any defense listed in Rule 12(b)(2)-(5), meaning lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process, in either of two ways.34 The first is “omitting it from a motion in the circumstances described in Rule 12(g)(2).”35 The second is failing both to make the defense by motion under Rule 12 and to include it in a responsive pleading or in an amendment that Rule 15(a)(1) allows as a matter of course.36
Rule 12(g)(2) alone would forbid only a second motion, and a defendant might hope to slip the omitted objection into the answer. Rule 12(h)(1)(A) closes that route. A defense omitted from the pre-answer motion cannot be revived by a second motion or by placing it in the answer.37 In the David and Goliath problems, Goliath made a pre-answer motion, and Rule 12(g) allowed him to include his objection to venue in it. Because he did not, the objection is “lost, waived, gone forever.”38 The first motion need not have concerned the omitted defense at all: a defendant whose pre-answer motion argues only failure to state a claim loses a later objection to venue, personal jurisdiction, or service.39
The cost can be steep. Offshore lost a personal jurisdiction defense that the court acknowledged might well have succeeded absent waiver, because the court held itself duty-bound to apply the Rules as written.40
The second route to waiver catches the defendant who never moves. In another variation, David sues for assault and Goliath answers, denying that he intentionally assaulted David and saying nothing about personal jurisdiction. Months later Goliath realizes that the court lacks personal jurisdiction over him and asks leave under Rule 15(a) to amend his answer to raise the defense.41 The answer was his first response to the complaint, and the Rules waive the four disfavored preliminary objections unless he raised them there.42 A late amendment by leave of court is not among the routes Rule 12(h)(1) names, since the rule saves a defense that is made by motion, included in a responsive pleading, or included in an amendment allowed as a matter of course.43 Goliath’s request therefore likely fails.
A defendant who removes a case has not waived anything by doing so. In a third variation, David sues Goliath in state court, Goliath files a notice of removal five days later, and three days after that he files a Rule 12(b)(2) motion in the federal court.44 The motion is proper. Rule 12(g)(2) does not bar it, because Goliath has made no earlier Rule 12 motion, and Rule 12(h)(1) does not bar it, because nothing was omitted from any earlier motion or pleading.45 A notice of removal moves the case between courts. It is neither a Rule 12 motion nor a responsive pleading, so it omits nothing and preserves nothing.46
The four defenses singled out for waiver share two traits. Each should be evident to the defendant at the start of the case, since the defendant knows how and where the papers were delivered and what ties it has to the forum. And each typically delays a suit rather than ends it, because the plaintiff can serve again or refile in a proper court. The Rules want these defenses decided up front, in time for a cure.47 A rule that let a defendant hold such an objection in reserve would reward delay: the defendant could answer, take part in the case for months, and raise the point only when the cure had become impossible.
Two groups of defenses escape the waiver rule. Failure to state a claim upon which relief can be granted, failure to join a person required by Rule 19(b), and failure to state a legal defense to a claim may be raised later in the case,48 even by a defendant who omitted them from an earlier motion, since the answer, a later motion, or the trial on the merits remains open.49 These defenses go to the legal sufficiency of the claim and to whether the right parties are before the court, questions that stay open as the case develops, so the Rules do not demand them at the earliest opportunity.
Lack of subject-matter jurisdiction stands apart from every other defense on the list. If the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action.50 Congress defines the federal courts’ jurisdiction, and the parties cannot enlarge it by their conduct, so a defendant’s silence cannot give the court a power Congress withheld. The duty belongs to the court as well: courts must raise the issue on their own motion, and the Supreme Court has dismissed cases on its own motion because the district court lacked subject-matter jurisdiction.51
Dwight’s first Rule 12 filing is a motion for failure to state a claim that omits his objection to venue. He has waived venue by that omission, yet his objection to subject-matter jurisdiction remains available at any time.52 The same holds for a defendant who answers the complaint and argues only afterward that the court lacks subject-matter jurisdiction: answering forfeits nothing about the court’s power.53
Waiver by omission differs from the waiver of service discussed earlier in this chapter. Waiver of service under Rule 4(d) is an agreement that the plaintiff requests and the defendant grants before responding to the suit.54 Waiver by omission is a loss the Rules impose after the defendant has responded. The two meet in one situation. A defendant who signed a Rule 4(d) waiver keeps the objections to personal jurisdiction and venue, yet those objections still disappear if the defendant leaves them out of the first Rule 12 motion or answer.55 That defendant has no service objection to preserve, because the formal delivery it would attack was dispensed with by agreement.
No Reserving the Defense
A defendant who sees the waiver danger may look for a shortcut: move on one ground and add a sentence reserving the rest. Hunter tested that shortcut, and it failed. Informing the court of a reservation does not prevent waiver.60
Offshore’s June 19, 2008 motion to dismiss for insufficient service of process stated that the defendants “expressly reserve all rights to challenge the subject matter and/or personal jurisdiction of this Court over Defendant Movants and/or raise other defenses to this claim.”61 When Offshore later moved to dismiss for lack of personal jurisdiction, the other parties objected that the defense was waived. Offshore replied that the reservation paragraph had put everyone on notice that jurisdiction was contested.62 The argument has intuitive appeal, since a plaintiff warned of a jurisdictional challenge cannot claim surprise. The court nonetheless held that the second motion was barred and that Offshore had waived personal jurisdiction.63
The court began with the verbs in the Rules. Rules 12(g)(2) and 12(h)(1) use phrases such as “make it by motion” and “makes a motion,” and a motion is an application to a court for an order.64 To reserve something is to hold it back for later, so a reservation asks the court to do nothing. A defendant therefore makes a Rule 12(b)(2)-(5) defense only by arguing it in a motion that asks the court to dismiss on that ground, and cannot simply assert or reserve it.65 Had Offshore’s June 19 motion argued lack of personal jurisdiction and sought dismissal on that ground beside the service ground, the defense would have been made, and nothing more would have been needed to preserve it.
Offshore’s argument treated the waiver rules as a notice device, but the Rules ask for something different: that the defense actually be made by motion, once, before the answer.66 The policy is easy to trace. A defendant who may present objections one motion at a time can delay the answer by interposing them in sequence, and the court must receive briefing on each, hear it, and decide it in turn. A reservation keeps that sequence alive, because the court rules on service now and on jurisdiction later. A warning to the plaintiff does nothing to shorten it. The strict reading is therefore not hypertechnical; it enforces the Rules’ choice to make litigants combine these preliminary defenses in one motion.
Offshore could not cure the omission afterward. A defense omitted from the pre-answer motion cannot be revived by placing it in the answer or by filing a second motion.67 A reservation also has no footing in the rule’s text, since nothing in Rule 12 makes waiver depend on whether the defendant announces a reservation, and the Hunter court treated the announcement as ineffective.68 A reservation in a motion has nothing behind it but the defendant’s wish that it be honored.
The court acknowledged that its result was harsh, since absent waiver the personal jurisdiction motion might well have been granted. It held itself duty-bound to apply the Rules as written, and as written they require the Rule 12(b)(2)-(5) defenses to be made by motion, once, before the answer.69 On an exam, the strength of the defense plays no part in the waiver analysis; Offshore waived a defense that appeared to be a winner.