Losing the Defense After Answering

A defendant who files no pre-answer motion may state lack of personal jurisdiction in the answer, and the answer then becomes the first response that either preserves the defense or loses it.¹ Filing the answer does not end the danger. The defense can still slip away afterward, and it slips away from two different defendants in two different ways. The first defendant left the objection out of the answer, and only a short-lived amendment can restore it. The second put the objection in the answer but never asked the court to act on it, and that defendant risks being treated as having accepted the forum.

The two risks call for different questions. The first is a question about the paper: what did the answer say, and can any amendment still change it? The second is a question about behavior: did a defendant who pleaded the defense then act like one who meant to use it? The next two subsections take these questions in turn. An exam stem usually shows which one it is asking by telling you what the answer contained and what the defendant did afterward.

Amending the Answer

A defendant who answered without raising personal jurisdiction has one way to recover the objection. Rule 12(h)(1)(B)(ii) preserves the defense if the defendant includes it in "an amendment allowed by Rule 15(a)(1) as a matter of course."² An amendment as of course is one the party files by right, without a motion and without the judge's permission,³ so the provision works as a quick repair for a slip noticed early.

Rule 15(a)(1) sets the length of the repair period. An answer ordinarily requires no responsive pleading, so the period runs under Rule 15(a)(1)(A), and the defendant has 21 days after serving the answer to amend without leave of court.⁴ The clock starts at service, whether or not the defendant has yet noticed the omission. The right also comes only once: a defendant who has already spent its as-of-course amendment on some other change has none left for the jurisdictional objection.

Rule 12(h)(1) names this amendment and no other. If an amendment made with leave could also cure the omission, the waiver would last only until the defendant got around to asking, and the rule would protect no one. Failure to state a claim shows how the Rules write a more generous path when they intend one. Rule 12(h)(2)(A) expressly permits that defense "in any pleading allowed or ordered under Rule 7(a)," so a defendant who left it out of an earlier motion may still raise it in the answer.⁵ Rule 12(h)(1) has no comparable language for personal jurisdiction, and the as-of-course amendment is the only cure it offers.⁶

A stem that adds "the judge seems willing to permit the amendment" gives you a fact that changes nothing. The only question is whether the amendment was filed within the as-of-course period.

The waiver reaches objections the defendant could have made in its first response. A defense that was not "available" at that point stands differently: the secondary source's example is a defendant who could not yet know what the complaint alleged, who could not then move to dismiss for failure to state a claim and so could file a second pre-answer motion on that ground.⁷ A defendant who knew the facts about its forum contacts when it answered will have trouble calling its jurisdictional defense unavailable.

The amendment window repairs only an omission. A defendant who pleaded the objection in the original answer has nothing to repair, but that defendant faces a different risk, which the next subsection takes up.

Failing to Press the Defense

Rule 12(i) lets a defendant turn a defense that sits in the answer into a question the judge must decide: if a party so moves, any defense listed in Rule 12(b)(1)-(7), whether made in a pleading or by motion, must be heard and decided before trial unless the court orders a deferral until trial.⁹ Lack of personal jurisdiction is on that list.¹⁰ Two points follow from the wording. A defense stated only in the answer qualifies, because the rule covers a defense "made in a pleading." And the entitlement arises only when a party moves, so the court has no duty to schedule a hearing for a defendant who never asked for one.¹¹

The defendant who put the objection in the answer stands better than the one who left it out, but Rule 12(h)(1) does not end the inquiry. The rule requires only that the waivable defenses appear in the defendant's first response, whether a motion or an answer.¹² It says nothing about what the defendant must do next, and the remaining risk lies in that silence. The Supreme Court described it in Neirbo Co. v. Bethlehem Shipbuilding Corp.: a defense of this kind can be lost "by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct."¹³ Failing to assert the defense seasonably is a matter of timing. Formal submission is an express acceptance of the forum. Submission through conduct is the quiet route, in which the defendant behaves like a party that has accepted the forum. A defense that merely sits in the answer is exposed chiefly to the first and the third.

A pleaded defense can still be lost because a pleading asks the court for nothing. It tells the court and the plaintiff that the forum is contested, and a judge managing a docket has no reason to halt a case over an objection that no one has asked to have decided. Meanwhile every later step assumes the forum is settled: the plaintiff pays for discovery, the court sets schedules, and motions are decided in a case the court believes it may resolve. A defendant free to hold the objection in reserve through all of that could watch the merits develop and spring the objection if things went badly. The waiver rules exist to prevent that tactic and the wasted judicial resources it causes.¹⁴ Requiring follow-up uses the defendant's own conduct to test whether the objection is real. A defendant who insists on the objection will ask for a ruling, and one who keeps litigating the merits without asking looks content.

The defendant's task therefore has two steps. The first is to state the defense in the answer or in a first motion.¹⁵ The second is to follow up in timely fashion. The Rules fix no number of days for the second step, so the question is one of judgment about how long the defendant waited and what it did in the meantime. Prompt action is the safe course. A request made after years of merits litigation, during which the defendant used the forum's procedures, invites a finding of forfeiture.

The deferral clause in Rule 12(i) leaves this analysis intact. A court may order that the defense be decided at trial rather than before it.¹⁶ A defendant who moved and was told the decision awaits trial has done the pressing the Rules contemplate, and the postponement is the court's choice, not the defendant's default. The defendant who never moved has no such protection.

A stem that says the defendant raised personal jurisdiction in its answer tells you only that the first step was taken. The sentences that follow decide the question. Did the defendant ever ask the court for a ruling, how long did the case run before it did, and what did the defendant do in the meantime? Years of discovery and summary-judgment practice with no request for a hearing point toward forfeiture, and a prompt Rule 12(i) motion points toward preservation. Do not hunt for a deadline measured in days after the answer. Rule 12(i) contains none, and the doctrine turns on timeliness and conduct.