Applying the Rules in Sequence

Applying the Rules in Sequence

Rule 12(h)(1) decides nearly every waiver problem in this chapter, and it speaks in two clauses. The first reaches a party who moved: that party waives a defense listed in Rule 12(b)(2) through (5) by omitting it from a Rule 12 motion in the circumstances Rule 12(g)(2) describes.¹ The second reaches a party who did not move: that party waives the same defenses unless it makes them by motion under Rule 12 or includes them in a responsive pleading or in an amendment allowed as a matter of course.²

Each clause borrows from a rule taught earlier. Rule 12(b) lets a party present the listed defenses by motion before pleading, although every defense must otherwise be asserted in the responsive pleading.³ Rule 12(g)(2) forbids a party that has made one Rule 12 motion from making another on a defense or objection that was available but omitted from the first.⁴ And Rule 12(a)(4) resets the answer date once a motion has been served.⁵ A fact pattern that touches all three is easiest to solve by asking the questions in the order the rules impose them, because each answer narrows what the next one can mean.

Three variables settle almost every result: what the defendant filed first, which kind of defense is at issue, and whether the defense was available when the first motion was made. The strength of the defense is not among them. Every operative phrase in Rule 12(h)(1) describes something a party did or failed to do in a filing (omitting a defense from a motion, making it by motion, including it in a pleading), so a defendant with an excellent objection to the forum loses it through a careless first filing as surely as a defendant with a weak one.⁶ Lawyers often draft answers less attentively than they do complaints.⁷ The first response therefore deserves the closest look.

Steps three and four decide whether a second motion is barred, and step two decides whether the defense itself survives. The two questions are separate. Rule 12(g) restricts only a second pre-answer motion, and Rule 12(h) is what takes a defense away.⁹ A student who merges them will treat every barred motion as a lost defense, which is the right result for personal jurisdiction and the wrong result for failure to state a claim.

One running case shows the sequence at work.

Goliath loses the personal-jurisdiction defense on both fronts. A second motion fails because the ground was available when he made the first, and Rule 12(g)(2) bars a later motion on an available defense he omitted.¹⁰ The answer does not rescue it either. Rule 12(g) says nothing about answers, but Rule 12(h)(1)(A) waives a defense that a movant left out of his motion, and the protection of Rule 12(h)(1)(B) belongs to a party who made no motion at all.¹¹ The usual exam error treats the answer as a safety net for whatever the motion left out.

Failure to state a claim fares differently on the same record. The defense asserts that on the facts the plaintiff pleaded, no recovery is possible under any legal theory.¹² Goliath's second pre-answer motion is barred, because this ground was equally available, yet the defense itself survives: Rule 12(g) blocks only another pre-answer motion, and Rule 12(h)(2) lets him raise the defense in his answer, by a later motion after the pleadings, or at the trial on the merits.¹³

Lack of subject-matter jurisdiction goes furthest. Read literally, Rule 12(g)(2) would bar even this motion, but Rule 12(h)(3) requires the court to dismiss at any time it determines jurisdiction is lacking, and that language supports allowing a second pre-answer motion on this ground. No court can act beyond its subject-matter competence, so a court dismisses whenever the defect is called to its attention.¹⁴ One record produced three outcomes, and the only fact that changed was the type of defense.

The first filing matters as much as the kind of defense. Suppose Goliath had made no pre-answer motion and served an answer that only denied the allegations. If he then moved three months later to dismiss for lack of personal jurisdiction, the motion would fail, because he neither made the defense by motion nor included it in a responsive pleading.¹⁵ Federal practice requires the objection by motion before answering or in the initial answer, and a defendant may not hold it back to spring on the plaintiff if the merits go badly.¹⁶ Rule 12(g)(2) restrains only a party that chooses to move, so an answer that had listed the defense would have preserved it.¹⁷

The ground of the first motion matters as little as its existence. Rule 12 treats the first motion as an omnibus one: a defendant may not ordinarily assert defenses one at a time, and waiver is the penalty for leaving certain ones out.¹⁸ A defendant who brings a Rule 12(b) motion of any sort and omits personal jurisdiction, improper service, or improper venue waives each of them if it was available when he moved.¹⁹ Consider a defendant whose summons and complaint were slipped under his door. If he moves only for failure to state a claim and loses, he has waived the service objection that was available to him.²⁰

Availability, the last variable, occasionally rescues a second motion. Suppose Goliath's first motion attacked service because no copy of the complaint was ever delivered to him. Without the complaint he could not have known what it alleged, so he had no ground then to move under Rule 12(b)(6), that defense was not available, and a second pre-answer motion on it is allowed.²¹ The denial of his first motion makes that story unlikely in practice.²² The test asks what the defendant could know on the day of the first motion, not what he now wishes he had raised.

The last step is the clock, which runs differently depending on what the court did with the motion.

Brenda's answer is due April 23, which is 14 days after notice of the denial. The same 14 days run if the court postpones the motion until trial.²³ Ravi's answer is due April 16, which is 14 days after the more definite statement was served, and not April 3, the date 14 days after the order; until the complaint is clearer, he has nothing he can answer. Whichever date applies, the answer is where every defense must be asserted if it was not made by motion, and a defendant who loses his motion must plead on this short, fixed schedule.²⁴