Consolidating Defenses

Consolidating Defenses

A defendant who moves before answering must decide what the motion will contain, and Rule 12(g), titled Joining Motions, supplies the answer.¹ The rule does two things. It lets the defendant put several defenses into one motion, and it requires the defendant to bring every available defense into that motion, because a second Rule 12 motion on an omitted ground is barred.

The reason is the schedule. Serving a Rule 12 motion postpones the answer, and if the court denies the motion, the responsive pleading is due 14 days after notice of the court's action.² Suppose a defendant could serve a motion on personal jurisdiction, wait for the ruling, serve a second on venue, and then a third on service of process. Each motion would postpone the answer again, the plaintiff would wait through round after round before the defendant ever responded to the complaint, and the court would decide in pieces what it could decide in one ruling. Rule 12(g) closes that door. Each defendant gets one orderly chance to test the complaint before pleading.

Consolidation also underlies waiver. A party loses a personal-jurisdiction, venue, process, or service-of-process defense by omitting it from a motion “in the circumstances described in Rule 12(g)(2),” so the two rules must be read together.³ This section covers the mechanics of joinder and of the limit on a second motion. The waiver sections that follow apply those mechanics to each defense.

Joining Defenses Without Waiver

Two provisions make joinder safe. Rule 12(g)(1) grants the permission: a motion under Rule 12 may be joined with any other motion the rule allows.⁴ The last sentence of Rule 12(b) adds the protection: no defense or objection is waived by joining it with other defenses or objections in a responsive pleading or in a motion.⁵ A defendant with several objections can therefore put them in one paper at no cost. The permission reaches past the seven listed defenses to any motion Rule 12 allows, including the motion for a more definite statement under Rule 12(e).⁶

Federal practice thus lets a defendant combine a personal-jurisdiction objection with a defense on the merits.⁷ Older procedure punished the combination by treating the personal-jurisdiction defenses as waived, and the instrument of that punishment was the special appearance.⁸ Under the special appearance, a defendant who objects to jurisdiction appears at the start of the action solely to challenge the court's power over her. If she appears “specially,” she can litigate that question without submitting to jurisdiction by the very act of appearing.⁹ The device was unforgiving. If the defendant raised anything beyond jurisdiction, the appearance became general and the objection was waived, on the theory that a defendant who asserts other defenses acknowledges the court's authority to adjudicate the case.¹⁰

The decisions show how little it took to lose the objection. In Davis v. Eighth Judicial District of the State of Nevada, the defendants objected to personal jurisdiction and also opposed the plaintiff's motion to amend the complaint; by litigating an issue other than personal jurisdiction, they appeared generally and submitted to the court's jurisdiction.¹¹ 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; the court held that the vagueness argument went to the merits and submitted the defendant to jurisdiction.¹² In Manning v. Furr, the defendant's special appearance referred to “other matters apparent on the face of the record,” and the court read that phrase as raising issues beyond jurisdiction, so the objection was waived.¹³ The vagueness argument that sank the Koplin defendant has a federal counterpart in the Rule 12(e) motion, and a federal defendant may join that motion with a Rule 12(b)(2) objection without risk.¹⁴

The special appearance was a trap for the defendants with the most to say. A defendant with a sound jurisdictional objection often has other complaints as well, such as an unclear pleading or a defense on the merits. The old procedure forced a choice between confining the first paper strictly to jurisdiction and risking the one objection that could end the case in that court. In the cases above, the loss came from what else the defendant's paper raised.

Rule 12(b) removes the trap. Because joining defenses waives none of them, a defendant who adds other grounds to a personal-jurisdiction objection keeps the objection.¹⁵ A defendant who makes no pre-answer motion may also assert the objection in the answer, next to defenses on the merits.¹⁶ The distinction between general and special appearances is gone in the federal courts and in states that follow the federal rules.¹⁷ A few state courts, Texas among them, still require a defendant to challenge personal jurisdiction by special appearance, so a challenge there must still be confined to jurisdiction.¹⁸

Joining protects only what the defendant includes. Rule 12(h)(1) still treats the four technical defenses as waived when a party omits them from a Rule 12 motion in the circumstances Rule 12(g)(2) describes. It also waives them when a party who has not moved neither makes them by motion nor includes them in a responsive pleading or in an amendment allowed as of course.¹⁹ Federal practice therefore keeps the special appearance's demand for speed and drops its demand for exclusivity: the objection must come right away, but it may come alongside anything else the defendant wishes to say.²⁰ A defendant who defends on the merits and tries to spring the objection later, when things go badly, loses it under either approach.²¹

Students err in two directions. Some treat a federal defendant's merits argument as a general appearance that waives personal jurisdiction, which describes the abolished special appearance and not Rule 12. Others read the no-waiver sentence as a license to raise an omitted defense whenever the defendant likes, though the sentence protects only defenses actually included in the motion or responsive pleading.

Bar on Successive Motions

Rule 12(g)(2) turns the permission to join into a limit on repetition. Except as Rule 12(h)(2) or (3) provides, a party that makes a Rule 12 motion must not make another Rule 12 motion raising a defense or objection “available to the party but omitted from its earlier motion.”²⁴ Three things must be true before the bar applies: the party has already made one Rule 12 motion, the party now wants to make another, and the ground for the new motion was available when the first was made but left out of it.

The bar is what makes the omnibus motion enforceable. Rule 12(g) contemplates a single pre-answer motion in which the defendant advances every available Rule 12 defense and objection that can be raised by motion. The defendant cannot delay the responsive pleading by interposing them piecemeal and must present them simultaneously.²⁵ The trigger is the first motion itself. A defendant who skips the motion and files an answer has made no earlier motion, so Rule 12(g)(2) bars nothing, and what that answer must contain is a question for the waiver rules.²⁶

The Advisory Committee's note gives the standard illustration. A defendant who moves to dismiss for failure to state a claim cannot make a further motion on improper venue if venue was available when the first motion was made, and the note calls the required consolidation salutary because it works against piecemeal consideration of a case.²⁷ The note adds that a party who invites the court by motion to pass on a threshold defense should bring forward all the specified defenses he then has, so that the court can do a reasonably complete job.²⁸ The word available keeps the bar fair. A defendant gives up only a challenge it could have made, and a defendant who brings everything at once has nothing to fear from the rule.

Suppose David sues Goliath, and Goliath's first motion, attacking service of process, is denied. Goliath then serves a second pre-answer motion asserting lack of personal jurisdiction. The second motion is barred.²⁹ Defenses of this kind should be evident to a defendant at the start of the action, because Goliath knew from the outset whether he had been properly served and whether his alleged conduct connected him to the forum.³⁰

The bar says only that Goliath may not make the second motion. What becomes of the omitted defense is a separate question that Rule 12(h) answers, and the answer depends on which defense it is. A personal-jurisdiction defense omitted from an earlier motion is waived under Rule 12(h)(1)(A), and Goliath cannot revive it by putting it in his answer or by filing a second motion.³¹ The committee described that waiver as reinforcing the policy against successive motions.³² Failure to state a claim, left out of the same first motion, fares differently. A second pre-answer motion on that ground is barred, but the defense survives, and Goliath may raise it in his answer, because Rule 12(h)(2)(A) permits it “in any pleading allowed or ordered under Rule 7(a).”³³ Two defenses omitted from the same motion thus meet the same bar and different fates.

The bar reaches a “defense or objection,” which is wider than the seven listed defenses. A motion for a more definite statement under Rule 12(e) and a motion to strike under Rule 12(f) are Rule 12 motions, so a defendant who has moved must include any such objection then available.³⁴ If Goliath's first motion is denied and he then moves to strike scandalous matter from the complaint, the court should deny the new motion. The offensive passage was in the complaint when he made the first motion, so he could have read it and objected then.³⁵ An objection that the complaint is too vague to answer follows the same logic, since it is available as soon as the complaint is served.³⁶

The test for availability is whether the facts needed to raise the ground were known or knowable when the first motion was made. Defenses under Rule 12(b)(2) through (5) pass that test almost automatically, because a defendant should know from the start whether service was proper and whether the forum has contact with the defendant's conduct.³⁷ Grounds that depend on the contents of the complaint can fail it. A defendant who never received the complaint cannot know whether it states a claim or is too vague to answer, so those grounds were not available when that defendant made a first motion on something else, and a second motion is permitted.³⁸

A ground that depends on claims not yet in the complaint cannot have been available when the first motion was made, and the second motion can reach only what the amendment newly makes available.³⁹

Rule 12(g)(2) excepts defenses addressed by Rule 12(h)(2) and (3).⁴⁰ Under Rule 12(h)(2), failure to state a claim, failure to join a person required under Rule 19(b), and failure to state a legal defense may be raised in a later pleading, by a Rule 12(c) motion, or at trial.⁴¹ Under Rule 12(h)(3), the court must dismiss “at any time” it determines that subject-matter jurisdiction is lacking. The rules give no explicit authority for a second pre-answer motion on that ground, but the “at any time” language suggests that one may be made. In any event, no court can act beyond its subject-matter competence, so a court will dismiss whenever the defect is called to its attention.⁴²

The last step is where students lose points. A barred second motion tells you only that the motion may not be made. Whether the defense survives depends on its type: a Rule 12(b)(2) through (5) defense omitted from the first motion is waived, a merits defense under Rule 12(h)(2) remains available for later pleading, a Rule 12(c) motion, or trial, and subject-matter jurisdiction can be raised at any time.