2009 WL 2858089 (E.D. La. 2009)
Kurt D. Engelhardt, District Judge. Before the Court is a Motion to Dismiss (Rec. Doc. 115) for lack of personal jurisdiction by Defendant Offshore Contractors ("Offshore"), filed pursuant to Federal Rule of Civil Procedure 12(b)(2). The motion is opposed by Plaintiff Brian Hunter ("Hunter") and also by fellow Defendant Dynamic Industries ("Dynamic"). The question raised by Offshore's motion to dismiss is whether a litigant can "reserve" a defense of personal jurisdiction in a pre-answer motion to dismiss and thereby circumvent the requirement of Rules 12(g)(2) and 12(h)(1) that all 12(b)(2)-(5) defenses be combined into one consolidated pre-answer motion. Having considered the pleadings, the original and supplemental memoranda, and the applicable law, the Court denies the motion as set forth herein.
I. BACKGROUND
Since the factual background of this case has been extensively recounted in earlier orders, the Court limits the discussion to the relevant procedural history. Hunter filed the instant suit against Offshore, among others, on November 19, 2007. Offshore filed a motion to dismiss for insufficiency of service of process on June 19, 2008. That motion contained the following language in its second paragraph: "None of these Defendant Movants submits to the jurisdiction of this Court. 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." By leave of Court, Hunter filed an amended complaint on July 10, 2008, and then filed his response to the motion to dismiss on July 22, 2008. On July 25, 2008, defendants, including Offshore Contractors, filed a motion to amend/correct the motion to dismiss to add documents that had inadvertently not been attached, and requested leave to file a reply to Hunter's opposition. Both motions were granted. Offshore answered on September 11, 2008, raising lack of personal jurisdiction as its third affirmative defense. The Court ordered supplemental briefing on the motion to dismiss on October 24, 2008. The motion to dismiss was eventually granted in part and denied as moot as concerns Offshore, since Offshore concluded that Hunter had perfected service. Because of the extensive preliminary motion practice in this case, no scheduling order has yet been entered. The instant motion was filed on July 27, 2009. Offshore argues that it does not have minimum contacts with the Eastern District of Louisiana such that the exercise of this Court's jurisdiction over it would comport with due process. While not conceding the lack of such contacts, Hunter and Dynamic argue that Offshore has waived personal jurisdiction pursuant to Rules 12(g)(2) and 12(h)(1) by filing a pre-answer motion to dismiss without joining its personal jurisdiction argument in that motion. Offshore responds that the "reservation" language cited above in the first motion to dismiss was sufficient to put Hunter and other parties on notice that it challenged personal jurisdiction and that it has accordingly not waived the defense.
II. ANALYSIS
The requirement that a court have personal jurisdiction over the parties is a due process right that may be waived either explicitly or implicitly. Rule 12(h)(1) of the Federal Rules of Civil Procedure requires that objections to personal jurisdiction, venue, and service of process be raised in a party's first responsive pleading. Under this rule, defendants wishing to raise any of these defenses must do so in their first responsive pleading, either a Rule 12 motion to dismiss or an answer, or the omitted defense is waived. Rule 12(h)(1) also states that a party waives any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the circumstances described in Rule 12(g)(2), or by failing either to make it by motion under the rule or to include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course. Rule 12(g)(2) provides that a party that makes a motion under the rule must not make another motion under the rule raising a defense or objection that was available to the party but omitted from its earlier motion. Accordingly, under Rule 12(g)(2), a party that makes a pre-answer motion to dismiss under Rule 12(b) must consolidate all its Rule 12 defenses into one motion; omission of any of the defenses in Rule 12(b)(2)-(5) in a pre-answer motion results in waiver.
The language of Rules 12(g)(2) and 12(h)(1), with phrases such as "make it by motion" and "makes a motion," suggests that to preserve its 12(b)(2)-(5) defenses prior to answering, a party cannot simply "assert" or "reserve" the defense, but must actually argue that defense in a motion that requests the court to enter an order. A motion is an application to a court for the purpose of obtaining an order directing some act in favor of the applicant; to "make a motion" within Rule 12(g)(2) is therefore to request the Court to take some action—here, to dismiss the suit for insufficiency of service of process. By contrast, to "reserve" an issue is to retain it for future use and does not constitute a present demand for action by the Court. Under this interpretation, informing a court that one "reserves" a personal jurisdiction defense for argument on a later motion is not sufficient to prevent waiver of the omitted defense. The defense must be actually raised by a motion that requests the Court to dismiss the action on personal jurisdiction grounds, together with any other Rule 12(b)(2)-(5) defenses.
This interpretation is reinforced by the Advisory Committee Notes to Rule 12(g)(2), which explain that subdivision (g) forbids a defendant who makes a pre-answer motion from later making a further motion presenting any defense or objection which was available at the time of the first motion and could have been included but was not. The required consolidation of defenses in a Rule 12 motion is intended to avoid piecemeal consideration of a case. Commentators likewise emphasize that the policy underlying the Rule is to eliminate unnecessary delay at the pleading stage and to encourage presentation of an omnibus pre-answer motion advancing every available Rule 12 defense. The policy is therefore one of promoting judicial efficiency, not merely providing notice to other litigants. Allowing a litigant to "reserve" a Rule 12(b)(2)-(5) defense for later argument without actually making and arguing the motion would undercut the plain language and policy of the Rules.
Despite a broad search, the Court found only two federal cases addressing whether a "reservation" of a defense in a pre-answer motion or pleading is sufficient to preclude waiver. The first is General Design Sign Co., Inc. v. American General Design, Inc., 2003 WL 251931 (N.D. Tex. 2003), where the district court held that a defendant waived its personal jurisdiction defense by failing to argue that defense in its motion to dismiss for lack of venue, even though under the statute at issue objections to venue implied lack of personal jurisdiction. The court concluded that raising only one of the related grounds for dismissal was not sufficient.
More on point is Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724 (2d Cir. 1998). In Transaero, a defendant added a footnote to its first responsive pleading (filed after a default judgment) purporting to preserve challenges to improper service and lack of personal jurisdiction. The Second Circuit held that under the unusual circumstances—where the defendant had been precluded from arguing those defenses by a prior District of Columbia decision that was entitled to res judicata effect until reversed on appeal—the notation was sufficient to preserve the defenses. Transaero therefore involved distinct procedural twists that do not exist here, and its holding can be limited to its facts.
The Court recognizes that the outcome reached here may be harsh, particularly because, absent waiver, Offshore's motion might well have been granted. Nevertheless, the Court must apply the Rules as written, which require that all 12(b)(2)-(5) defenses be made by motion, once, prior to filing an answer. Given that policy, Offshore's "reservation" language is not sufficient to preclude waiver under Rules 12(g)(2) and 12(h)(1). The Court concludes that Offshore's second 12(b) motion is barred by Rules 12(h)(1) and 12(g)(2) and that Offshore has waived the personal jurisdiction defense in this matter.
In light of its determination that Offshore has waived personal jurisdiction, the Court declines to consider the parties' arguments regarding whether Offshore has minimum contacts with this forum sufficient to support the exercise of the Court's jurisdiction over it. However, though the Court does not decide that issue, after reading the briefs it appears that defending the instant lawsuit constitutes Offshore's only contact with this forum.
III. CONCLUSION
Considering the foregoing, Offshore Contractors' motion to dismiss for lack of personal jurisdiction is DENIED.