Getting Off Easy

 WAIVER OF DEFENSES UNDER RULE 12

So much for the consequences of raising Rule 12(b) defenses. The more puzzling aspect of the rule is the consequences of not raising them. Rules 12(g) and (h), which govern those consequences, appear Byzantine at first, but are more easily understood once their rationale is clear. Essentially, those subsections of the rule, read together (very carefully), provide that four of the 12(b) defenses will be waived if not raised in the defendant’s first response to the complaint. If the defendant objects to personal jurisdiction, venue, the form of the process, or the method of service of process, she must raise those defenses in the pre-answer motion or (if she does not make a pre-answer motion) in the answer. If she fails to raise one of these four “disfavored” defenses in her initial response, she has waived the omitted defense for all time.

This result, hard though it may be to extract from the language of these subsections, makes good sense. If the defendant has suffered any prejudice from these preliminary defects, she should become aware of it when the complaint is served upon her. For example, if the suit is filed in a state that has no personal jurisdiction over the defendant, she should be able to tell that from the caption of the complaint (indicating where the suit has been filed) and the facts alleged in it, which indicate what events gave rise to the claim. Thus, it is not unreasonable to put the burden on the defendant to raise these defects right away. If the rule did not require these objections to be raised immediately, the court and the parties might proceed to adjudicate the suit, only to learn down the road that the court had no right to do so. A defendant might even keep procedural objections in her back pocket and spring them on the court and the plaintiff later on if things go badly on the merits. To avoid such tactics and wasted judicial resources, the rule provides that the defendant must raise these defenses immediately or waive them by her failure to do so.[1]

An Early Question

1. Presumably, if the complaint fails to state a claim upon which relief can be granted, the defendant should be able to tell that from the complaint alone. Why, then, did the rulemakers not provide that the Rule 12(b)(6) defense is also waived if it is left out of a pre-answer motion?

These rules may seem fussy and technical to you, but it is well worth your while to learn them now. Many a lawyer has re-read Rule 12 in a cold sweat to find out if she has unwittingly waived her client’s rights. It is one thing to lose a case by doing the wrong thing, but it is all the more embarassing to lose it by doing nothing. Under Rule 12 the decision to do nothing is fraught with consequences for your client.

Examples

Traps for the Unwary

2. David files a complaint for assault against Goliath. Goliath files a timely motion to dismiss for insufficient service of process. Several months later, the judge denies the motion to dismiss and so notifies the parties.