Waiver of Disfavored Defenses

Waiver of Disfavored Defenses

Rule 12(h) answers the question that the rules on consolidation leave hanging: what does a defendant lose by failing to raise a defense at the right moment?¹ For four defenses the answer is severe. Under Rule 12(h)(1), a party waives any defense listed in Rule 12(b)(2) through (5), meaning lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process, and waiver means the defendant loses the right to raise the defense at all.² The rule offers two routes to that result. The first is omitting the defense from a Rule 12 motion in the circumstances Rule 12(g)(2) describes.³ The second reaches a party that has not moved: unless it makes the defense by motion under Rule 12, or includes it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course, the defense is waived.⁴

Both routes end in the same place. A defendant that leaves one of the four defenses out of its first motion cannot raise it by another pre-answer motion, and it cannot raise it again by any means, the answer included.⁵ A defendant that never moves must put the defense in its answer, or the answer's silence has the same effect. Either way, the first response to the complaint is the moment these objections must appear.

Two features set these four defenses apart. First, they should be evident to a defendant at the start of the case. A defendant such as Offshore, whose case is discussed below, should know from the outset whether it was served properly and whether its alleged conduct involves enough contact with the forum to satisfy due process and any applicable long-arm statute.⁶ Second, these defenses typically only delay a lawsuit, until the plaintiff picks the right court or perfects service, rather than end it, so the rule wants them decided up front, in time for a cure or a refiling in a proper court.⁷ A looser rule would also invite tactics. The court and the parties might adjudicate a suit only to learn later that the court had no right to do so, and a defendant might keep procedural objections in her back pocket and spring them if things went badly on the merits.⁸

The list is deliberately narrow. Personal jurisdiction is a defense personal to the defendant, who may waive the procedural safeguard if content to litigate in the plaintiff's chosen forum, whereas subject-matter jurisdiction implicates systemic concerns.⁹ No court can act beyond its subject-matter competence, so a court will dismiss whenever the lack of that jurisdiction is called to its attention.¹⁰ Later sections take up that exception and the merits defenses that survive; the two subsections below follow the two routes to waiver, starting with the defendant that moves.

Omission From a Motion

Rule 12(h)(1)(A) supplies the penalty for an incomplete first motion: a party waives any Rule 12(b)(2) through (5) defense by omitting it from a motion in the circumstances described in Rule 12(g)(2).¹¹ Rule 12(g)(2) supplies those circumstances: “a party that makes a motion under this rule 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.”¹² Waiver therefore requires three things together. The defendant made a Rule 12 motion, one of the four defenses was available when it did so, and the motion left that defense out. When all three are present, Rule 12(g)(2) bars a second motion and Rule 12(h)(1)(A) removes the defense from the case, so the answer cannot restore it either.¹³

The two rules divide the work, and Goliath shows how. Suppose he moves to dismiss on one ground and leaves out his objection to venue. Rule 12(g) allowed him to include venue in that motion, and because he did not include it in his first response to the complaint, it is lost for good.¹⁴ Rule 12(g)(2) is what stops him from filing a second motion on venue, and Rule 12(h)(1)(A) is what stops him from pleading it in the answer. Students often treat the answer as a net that catches whatever the motion dropped. Once a defendant moves, however, the motion must carry all four defenses that are then available.¹⁵

A federal district court applied exactly this reasoning against a defendant called Offshore. Offshore's first pre-answer motion omitted personal jurisdiction. It later answered the plaintiff's amended complaint, listing lack of personal jurisdiction as its third affirmative defense, and also filed a second Rule 12(b) motion on the point.¹⁶ The court held the second motion barred by Rules 12(h)(1) and 12(g)(2) and the defense waived.¹⁷ It acknowledged that the result was harsh, since absent waiver the motion might well have been granted, but it was “duty-bound to apply the law as it is written,” and as written the Rules require the 12(b)(2) through (5) defenses to be made by motion, once, before an answer is filed. Offshore's “reservation” language did not prevent waiver. The upshot was a court asserting jurisdiction over a defendant that seems to lack minimum contacts with the forum state.¹⁸ The court's description of the policy fits a defendant who chooses to move. A defendant who skips the motion is held to the same four defenses by a different route, taken up in the next subsection.

The reasons for the rule begin with what a motion does. A party who by motion invites the court 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, and the waiver reinforces the policy against successive motions.¹⁹ The plaintiff gains as well, because the point of deciding these defenses up front is to leave time for a cure or a refiling in a proper court.²⁰ A defendant who doubts whether an objection is sound should still raise it, subject to the ethical restraints of Rule 11, and counsel who need more time to investigate may move under Rule 6(b) for an extension of time to respond.²¹

The trigger is any Rule 12 motion, whatever its ground. A motion for failure to state a claim is an especially tempting first move, because under the plausibility standard it is easier for a defendant to win than it was before 2007.²² But if a defendant makes a pre-answer Rule 12 motion on that ground, or for defective venue, or on any other ground, without including its objection to personal jurisdiction, the omission forfeits the objection even if it was inadvertent. The objection then cannot appear in the answer, as it could have if the defendant had made no Rule 12 motion at all.²³ Rule 12(g)(2) is not limited to motions to dismiss, since it speaks of any motion under the rule, so a motion for a more definite statement starts the same clock.²⁴

The same loss follows when a defendant moves only on subject-matter jurisdiction and ignores personal-jurisdiction and venue objections that were apparent from the complaint. Those two objections are waived, while the subject-matter objection itself is not.²⁵

The type of defense omitted decides the outcome. Suppose Goliath's first motion leaves out failure to state a claim rather than venue. That defense is not one of the four, and Rule 12(h)(2)(A) lets it be raised “in any pleading allowed or ordered under Rule 7(a),” which includes an answer.²⁶ A second pre-answer motion on that ground is still barred.²⁷ The bar on a second motion and the loss of the defense are therefore separate consequences, and only the four disfavored defenses suffer both. Later sections develop the defenses that survive.

Omission From the First Response

Rule 12(h)(1)(B) reaches the defendant who has made no Rule 12 motion. That defendant waives any Rule 12(b)(2) through (5) defense unless it makes the defense by motion under Rule 12 or includes it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.³¹ An amendment as a matter of course needs no permission from the judge, and for an answer Rule 15(a)(1) gives the defendant twenty-one days after serving it.³² The previous subsection concerned a defendant who moved and left a defense out. This one concerns a defendant whose first move is to answer. For that defendant the rule is both an invitation and a trap, because the answer is a proper home for the four defenses only if they are written into it.

Rule 12 never requires a pre-answer motion. Defendants wishing to raise any of the four defenses must do so in their first responsive pleading, whether a Rule 12 motion or an answer, or the omitted defense is waived.³³ Two paths are therefore safe: a pre-answer motion that carries every available defense, or no motion at all followed by an answer that includes them. Only a defendant that makes no Rule 12 motion may safely use the defense-in-the-answer method.³⁴ The unsafe paths are a motion that omits a defense, which Rule 12(h)(1)(A) reaches, and an answer that omits it, which Rule 12(h)(1)(B) reaches unless the short amendment window described below rescues the defendant. A defendant who takes the motion path may support it with affidavits and other matter outside the complaint, since that is proper when jurisdiction is challenged or a dilatory defense is raised. The conversion rule is different: it turns a motion to dismiss for failure to state a claim, or for judgment on the pleadings, into a motion for summary judgment when outside matters are presented and not excluded.³⁵

Tying preservation to the first response makes sense because of what silence tells everyone else in the case. Failure to raise improper venue, either in a pretrial motion or in the answer, is deemed acquiescence, and in many instances the remedy for improper venue is transfer rather than dismissal.³⁶ A contrary rule would invite sandbagging. The raise-it-or-lose-it rule forces a defendant to assert its jurisdictional objection before the court invests time in the merits, and the defendant may not hold the objection back, try to win on the merits, and press the objection only if the case goes badly.³⁷ Federal practice is unforgiving on the point: in most circumstances the objection must appear in the defendant's first filing or it is lost forever.³⁸

Change the Goliath facts so that David sues him for assault and Goliath makes no motion at all. He serves an answer that denies the allegations and never mentions personal jurisdiction, and three months later he moves to dismiss on that ground. The motion fails. The answer was his first response to the complaint, it omitted the defense, and a defense left out of the first response is waived for good.³⁹ His denials preserved nothing, because the rule asks whether the answer included the defense itself. The three months add nothing, since the defense was gone the day the answer was served without it. The bar on successive motions plays no part either, because Goliath made no earlier motion, and the waiver comes from the answer.

Goliath cannot repair the omission by asking the court for leave to amend. The specified defenses are of such a character that they should not be delayed and brought up for the first time by an application to the court to amend the responsive pleading.⁴⁰ Only an amendment allowed by Rule 15(a)(1) as a matter of course preserves the defense, and for an answer that window runs twenty-one days from service.⁴¹ The window opens only once. Amendment without leave is available a single time under any circumstance, and the second time the amending party needs leave unless the opposing party consents.⁴²

The defendant who writes the defense into the answer stands in the opposite position. Had Goliath made no motion and listed lack of personal jurisdiction among the defenses in his answer, he would have satisfied the rule, and Rule 12(g) would never have required an earlier motion, since it governs only a party that chooses to move.⁴³ Pleading the defense also leaves open the route of pressing it later by motion.⁴⁴ Preservation is still a first step and not a guarantee. A defendant who pleads the objection and then litigates the merits without ever pressing it is doing what the raise-it-or-lose-it rule forbids, so the defense must still be pursued in a timely way.⁴⁵ When the objection is pressed and the jurisdictional facts are disputed, the court must eventually resolve them through live testimony, before trial or with the trial, and findings a judge makes without a jury are not set aside on appeal unless clearly erroneous.⁴⁶

Two errors recur on exams. One treats the answer as a harmless first step from which the defendant can return to add a forum objection, forgetting that the answer is itself the first response. The other treats a defense that appears in the answer as permanent protection, forgetting the duty to pursue it in a timely way.