Working a Waiver Problem

Rule 12(b)(2) lists lack of personal jurisdiction among the defenses a federal defendant may assert against a complaint,¹ and the earlier sections of this chapter showed how a defendant keeps that defense or loses it. A waiver problem asks you to apply those rules to a series of filings, and the order of the filings decides the answer. The defendant's first Rule 12 response fixes what the defendant still owns; every later filing can only keep or lose what that response left. A defendant whose first motion omitted the objection lost it at that moment, and an answer served three weeks later, however carefully drafted, restores nothing. Analysts who start with the most interesting filing instead of the first one usually reach the wrong result.

Work the problem in a fixed sequence, because each question depends on the answer to the one before it:

Exam Analysis Steps

Identify the defendant's first Rule 12 response to the complaint. A pre-answer motion on any ground is that response; if the defendant filed no motion, the answer is.²
Ask whether that response actually made the personal-jurisdiction objection. A defendant who merely announces that it reserves the point has asked the court for nothing and has kept nothing, as the earlier discussion of the reservation trap explained.
If the first response was a motion that omitted the objection, ask whether the defense was available when the defendant moved. Rule 12(g) required the motion to include every Rule 12(b) defense then available,³ and a defense becomes available once the defendant is served and can see what the complaint alleges.⁴ For personal jurisdiction that is nearly always the day of service, because the defendant knows its own contacts with the forum.
If the defendant answered without moving first, ask whether the answer made the objection. An answer that omits it waives it.⁵ Whether a later amendment can repair the omission is the separate question the earlier section on amending the answer addressed.
Check whether an exception saves a different defense. Lack of subject-matter jurisdiction may be raised at any time, and failure to state a claim may be raised in a later pleading even when an earlier motion omitted it.⁶
If the defense survived, ask whether later conduct forfeited it, as the earlier sections on pressing the defense and on discovery sanctions explained.

Step one carries most of the weight. A defendant who moves on any ground gets a single chance: Rule 12(g) requires the motion to include every Rule 12(b) defense then available, and Rule 12(g)(2) forbids a second pre-answer motion on a defense that was available and left out.⁷ The omitted defense is waived for good under Rule 12(h)(1)(A).⁸ The answer gives a movant no second chance, because it is the first response only when no motion preceded it.⁹ Steps three and four therefore divide problems by what the defendant filed first, and no problem is solved by asking only whether the answer contained the objection.

Run the steps in order. The supplier's first Rule 12 response was the service motion, so the answer is not the response that counts. That motion left out the personal-jurisdiction objection, and the objection was available when the motion was filed: the supplier knew it had no contacts with the forum the day the papers arrived. Rule 12(g)(2) barred a second motion on the omitted defense, and Rule 12(h)(1)(A) waived it, so the answer cannot bring it back.¹⁰ Service and personal jurisdiction are different objections, one attacking the delivery of the papers and the other the court's power over the defendant, and the Rules require a movant to present both together or lose the one it omitted. The problem ends at step three.

The outcome reverses for a defendant whose earlier filing was not a Rule 12 response at all.

The notice of removal moves the case from one court to another and responds to nothing in the complaint. No earlier Rule 12 motion exists to trigger Rule 12(g)(2), and no earlier motion or answer exists from which the objection could have been omitted under Rule 12(h)(1). The Rule 12(b)(2) motion is therefore the company's first Rule 12 response, and it preserves the defense.¹¹ Compare the supplier: its first paper was a motion on another ground, which spent its one chance, while the roofing company's first paper asked the court for no ruling on the complaint, so its one chance remained.

The exceptions in step five matter most when the defendant's first motion is itself unusual, as when it asks the court to clarify the complaint.

A motion for a more definite statement is a Rule 12 motion, so Rule 12(g)(2) governs it as it governs any other. The service objection fails. The delivery to the receptionist was visible the moment the papers arrived, so the objection was available, and the distributor had to include it in the first motion.¹² The failure-to-state-a-claim objection may still be heard. The distributor could not know whether the allegations stated a claim until it knew what they were, so the defense was not yet available when it filed the first motion,¹³ and the defense in any event survives omission from an earlier motion and may be raised in a later pleading.¹⁴

Suppose instead that a defendant moved only for failure to state a claim and then added venue and subject-matter objections. The split would be the same. Venue was available and omitted, so it is waived,¹⁵ while subject-matter jurisdiction may be raised at any time.¹⁶ Surviving waiver is not the same as winning, however. A diversity objection is tested on the facts: no plaintiff may share a state of citizenship with any defendant, the amount in controversy must exceed $75,000, and a plaintiff is a citizen of the state where she resides when she files suit, not where she lived when the claim accrued.¹⁷

The method also yields advice for the defendant. The safest course is to put every available Rule 12(b)(2) through (5) defense in the first response, whether that response is a motion or an answer.¹⁸ A defendant unsure whether an objection has merit should raise it, subject to the limits of Rule 11, or move under Rule 6(b) for more time to investigate before responding.¹⁹ Raising the objection risks little; leaving it out forfeits it.

Working a Waiver Problem

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