Preserving the Objection

Preserving the Objection

A defendant who spots a defective summons holds a Rule 12(b)(4) defense, but holding a defense and keeping it are different things. The earlier sections showed what gives the defense its content: a summons that fails Rule 4(a)(1), for instance because it does not name the court and the parties or does not state the time within which the defendant must appear and defend.¹ This section shows how a defendant loses it. Insufficient process belongs to a group of Rule 12(b) defenses that attack how and where the lawsuit began, and Rule 12 makes the defendant raise each of them at the outset. An objection raised in the wrong filing or at the wrong time is worth nothing, however plain the flaw on the face of the summons.

Okonkwo Logistics, the defendant in the earlier summons scene, shows the stakes. Its summons bore no clerk’s seal, yet it filed an answer that never mentioned the omission and defended on the merits. Whether Okonkwo can still attack the summons depends on how Rule 12 gathers the threshold defenses into the defendant’s first response, and four pieces of doctrine supply the answer. The omnibus motion rule allows a defendant one pre-answer motion for its available objections. Rule 12(h)(1) states what the defendant loses by leaving a defense out. The reservation cases show that announcing a defense does not raise it. The abolition of the special appearance shows that a defendant may raise a process objection beside merits defenses without risk.

The Omnibus Motion Rule

Rule 12(g)(1) lets a defendant join any Rule 12 motion with any other motion that Rule 12 allows, so a defendant with several objections to the way the case began may put them in one filing.² Rule 12(g)(2) completes the arrangement: except as Rule 12(h)(2) or (3) provides, a party that makes a Rule 12 motion must not make another raising a defense or objection that was available to it but omitted from the earlier motion.³ Together the two subdivisions form the omnibus motion rule. The defendant may gather every available threshold objection into one motion, and having made that motion, gets no second. The rule binds only a defendant that files a pre-answer motion, since Rule 12(g) requires no one to file one.⁴

The one-motion limit reflects what each motion costs. Every Rule 12 motion requires a response from the plaintiff and a ruling from the court, and even a motion that fails may delay the case, for instance by forcing the plaintiff to serve the complaint again or to refile in a different court.⁵ A defendant that attacked the summons in one motion, the manner of delivery in a second, and the sufficiency of the complaint in a third would impose that delay three times, and the later rounds would accomplish nothing the first could not have. Consolidation puts every available objection before the judge at once. The court rules on the whole set, and the plaintiff learns in a single step what needs repair.

The word available keeps the rule fair, because no defendant should lose an objection it had no way to raise. The standard example is an amended complaint. When the plaintiff later adds a claim, the defense that the new claim fails to state a cause of action could not have been raised in the first motion, because the claim was not yet in the pleading.

Process and service defects sit at the opposite end of that spectrum. Neither depends on what the complaint says: one concerns the summons the defendant holds, and the other concerns how the papers reached it. A defendant that moves for insufficient process has necessarily received process of some kind, and it very likely knows enough about the delivery to challenge service in the same motion.⁶ These defenses are therefore almost always available when the first motion is filed, and the omnibus rule binds the defendant accordingly.

The service ground was in plain view when Dunmore filed the first motion, because Dunmore held the papers and knew how they arrived. The defense was available and omitted, and the second motion fails for that reason alone.⁷

The harder exam question asks when a second pre-answer motion survives, and the test is whether the defendant could have raised the ground the first time.

A second group of objections survives for a different reason. Rule 12(g)(2) opens with an exception clause pointing to Rule 12(h)(2) and (3), and those provisions keep two kinds of objections alive even after the defendant has made a pre-answer motion.⁸

Rule 12(h)(2) preserves failure to state a claim and failure to join a required party under Rule 19. It does not allow a second pre-answer motion on either one, but it does allow both to be raised by pleading or by a post-answer motion any time before the close of trial.⁹ Both defenses go to the merits of the case and not to how the suit began, a contrast the next section develops. Rule 12(h)(3) concerns lack of subject-matter jurisdiction, which the court may recognize at any time. Congress vests that jurisdiction in the federal courts, and the parties cannot enlarge it by their conduct, so a court that finds the defect must dismiss even if it first finds it on appeal.¹⁰

A defendant that has made a pre-answer motion and lost has therefore used its one pre-answer motion, and it cannot file another on failure to state a claim. It may still assert that defense in the answer or by a later motion before the close of trial.¹¹ Rule 12(g)(2) governs the second pre-answer motion; what happens to a defense left out of the first response is the subject of the next section.

Waiver Under Rule 12(h)(1)

Rule 12(h)(1) names four threshold defenses that die by omission: lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process, the defenses listed in Rule 12(b)(2) through (5). A party waives any of them in one of two ways, which the rule states in separate paragraphs.¹³ To waive a defense in this sense is to lose it through inaction. The defendant need not have decided to give it up, and a defense that was good on the day the papers arrived disappears if the defendant fails to raise it at the right moment. Insufficient process is on the list,¹⁴ so the objection to a defective summons survives only if the defendant avoids both routes to waiver. The last section ended with the bar on a second pre-answer motion, and that bar leaves a larger question open: whether an omitted defense might return some other way.

The first route is omission from a motion. Under Rule 12(h)(1)(A), a party waives the defense by omitting it from a motion in the circumstances described in Rule 12(g)(2).¹⁵ Those circumstances are the ones the omnibus rule defines: the defendant has made a pre-answer Rule 12 motion, and the omitted defense was available when it did. Rule 12(g)(2) by itself forbids only a second motion, and a defendant might hope to keep the defense by raising it in the answer instead. Paragraph (A) ends that hope. The defense is lost altogether, and neither the answer nor another motion can revive it.¹⁶ A summons defect shows on the face of the document, so it is almost always available at the moment of the first motion, and an omission at that stage is almost always final.

What cost Prentiss the objection was its absence from the first motion. The court never rejected the objection, because no one asked it to rule on the objection, and the strength of the objection made no difference once the moment for raising it had passed.

The second route reaches a defendant that files no pre-answer motion at all. Rule 12(h)(1)(B) waives the defense unless the defendant does one of two things: makes it by motion under Rule 12, or includes it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.¹⁷ The responsive pleading is the answer, and an amendment as a matter of course is one the defendant may make without the court’s leave. A defendant that skips the motion pays no penalty for that choice, since Rule 12(g) requires nothing of a defendant that never files one, and Rule 12(h)(1) asks only that the defense appear in the first response to the complaint, whether that response is a motion or an answer.¹⁸ The danger lies in the answer itself. An answer that denies the allegations and omits the defense waives it, so the answer becomes the deadline.

Together, the two paragraphs of Rule 12(h)(1) fix one deadline: the defendant’s first response to the complaint. Paragraph (A) polices the defendant that moves first and leaves something out, and paragraph (B) polices the defendant that answers first and leaves something out. Whichever filing comes first must carry every available defense in the Rule 12(b)(2) through (5) group, and the order of events decides the outcome. The sequence answers the question about Okonkwo Logistics. Its answer was its first response and omitted the unsealed summons, so paragraph (B) waived the objection, and the defect can no longer be attacked.

The rule singles out these four defenses because of what they share. Each should be evident to the defendant at the start of the case, since the defendant knows which papers arrived, how they were delivered, and what its own connection to the forum is. Each also typically delays a lawsuit without ending it, because the usual cure is a corrected summons, a new delivery, or a refiling in the proper court.¹⁹ Both features favor early decision. A repair that costs a few weeks at the outset becomes expensive after months of litigation, and a defendant allowed to hold the objection in reserve could try to win on the merits and raise the defect only if the case went badly. The raise-it-or-lose-it rule forces the defendant to speak before the court and the plaintiff have invested in the merits.²⁰

Defenses outside the Rule 12(b)(2) through (5) group get different treatment, so an exam answer sorts each defense before deciding whether it was lost. Rule 12(h)(2) lists failure to state a claim, failure to join a person required by Rule 19(b), and failure to state a legal defense to a claim, and it allows each to be raised later in the case.²¹ It does not authorize a second pre-answer motion on these grounds, but the defenses survive omission from the first motion and from the answer. The required-party defense and the failure-to-state-a-claim defense are bound up with the merits: deciding who is required takes an analysis of the substance of the case, and deciding whether a claim has legal support is the merits question itself. If neglect could forfeit them, the action might continue without a required party or on a claim with no basis in law. The forgiveness ends at the close of trial, and a defendant that has asserted neither defense by then loses both.

Subject-matter jurisdiction stands apart from both groups. If the court determines at any time that it lacks subject-matter jurisdiction, it must dismiss the action.²² Congress vests that power in the federal courts, and the parties cannot enlarge it by their conduct, so a defendant’s silence cannot supply what the statutes withhold. A court may dismiss on this ground even when the defect first comes to light on appeal.²³ A defendant whose first motion raises only venue has therefore lost personal jurisdiction, insufficient process, and insufficient service of process, yet it can still plead failure to state a claim in the answer and can raise lack of subject-matter jurisdiction at any point.

Preserving a defense in the first response does not preserve it forever. A defendant that lists a Rule 12(b)(2) through (5) defense in the answer must still pursue it in timely fashion, because a defense such as lack of personal jurisdiction, which protects a due process right, may be waived implicitly as well as explicitly.²⁴ A defendant that pleads the defense and then spends months litigating the merits without asking for a ruling invites the argument that its conduct waived the defense.²⁵

Reservation Does Not Preserve

Rule 12(g)(2) forbids a party that has made a Rule 12 motion from making another that raises a defense or objection that was available but omitted from the first,²⁷ and Rule 12(h)(1)(A) penalizes the omission by waiving any Rule 12(b)(2) through (5) defense.²⁸ Both provisions speak of what a party does with a motion, and that wording invites a shortcut: file a quick pre-answer motion on one ground and announce that the other grounds are held back for later. Hunter v. Serv-Tech, Inc. tested the shortcut. The court asked whether a litigant can “reserve” a personal jurisdiction defense in a pre-answer motion and thereby escape the requirement that all Rule 12(b)(2) through (5) defenses be combined in one consolidated pre-answer motion.²⁹

Hunter sued Offshore Contractors and other defendants, and Offshore’s first filing was a motion to dismiss for insufficient service of process. A paragraph of that motion stated that the movants did not submit to the court’s jurisdiction and “expressly reserve all rights to challenge the subject matter and/or personal jurisdiction of this Court.”³⁰ The motion asked for dismissal only for insufficient service, so the jurisdictional challenge appeared as a promise and never as a request. Offshore later answered and pleaded lack of personal jurisdiction among its defenses. In July 2009 it moved to dismiss under Rule 12(b)(2). Hunter and a co-defendant, Dynamic Industries, opposed on the ground of waiver, and Offshore replied that the reservation language had put the other parties on notice that it challenged personal jurisdiction.³¹

The court denied the motion and held that Offshore had waived the personal jurisdiction defense.³² Its reasoning began with the verbs in the rules. Rule 12(g)(2) speaks of a party that “makes a motion,” and Rule 12(h)(1) speaks of a defense that a party must “make” by motion. A motion is an application to a court for an order directing some act in favor of the applicant, so making a motion on a defense means asking the court to act on it, which here meant asking the court to dismiss the suit on personal jurisdiction grounds.³³ To reserve an issue, by contrast, is to retain it for future use, and a reservation makes no present demand on the court.³⁴ A statement that a defense is reserved therefore leaves the defense unmade, and an unmade defense that was available when the first motion was filed falls within the waiver. Offshore knew its own contacts with the forum from the start, so nothing made the defense unavailable.³⁵

The purpose of the rule explains why the court would not read “make a motion” loosely. The court described the policy as one of promoting judicial efficiency, not merely giving other litigants notice, and it reasoned that letting a litigant reserve a defense for later argument would undercut the plain language and the policy of the rules.³⁶ A reservation can tell the plaintiff that another challenge may come, but it leaves the court with only the first motion to decide and keeps a second round of briefing available whenever the defendant chooses to cash in the promise. Hunter shows the cost: by the time Offshore filed its jurisdictional motion, extensive preliminary motion practice had left the case without a scheduling order.³⁷

The text of Rule 12 also explains why the answer in Hunter could not help. Rule 12(b) itself asks only that a defense be asserted in the responsive pleading, and a defense merely pleaded there stays alive for later argument. Rules 12(g)(2) and 12(h)(1) govern the different case in which the defendant moves first, and there every Rule 12(b)(2) through (5) defense must be made in one motion or it is waived.³⁸ Offshore had moved first and omitted the defense, so listing it in the later answer could not revive it, and neither could a second motion.³⁹

The result was harsh. The court observed that defending this very lawsuit appeared to be Offshore’s only contact with the forum, and it declined to reach the minimum-contacts question, yet it applied the rules as written, which require that all Rule 12(b)(2) through (5) defenses be made by motion, once, before the answer.⁴⁰ Waiver cost Offshore a defense that looked strong on the merits, which shows what the rule measures: what the defendant did with its first motion, and not how good the omitted defense was. A party cannot rewrite that arrangement by announcement, since the defense must be made in a motion that asks the court for an order.⁴¹

The court distinguished Transaero, Inc. v. La Fuerza Aerea Boliviana, a decision that had treated a reservation as sufficient, on the ground that Transaero involved procedural twists absent in Hunter, and it limited that holding to its facts.⁴²

Hunter itself concerned a first motion on service and an omitted jurisdictional defense. Insufficient process under Rule 12(b)(4) sits in the same group of defenses that Rule 12(h)(1)(A) treats, so the reasoning carries over to a summons defect.⁴³ The two scenes below apply it to that pair of defenses, and neither describes a court ruling.

Both defendants knew about the missing seal from the start, so availability is the same on each side. What separates them is that Calloway promised a challenge and Brightwell made one. An exam stem that recites a reservation tempts the answer to treat the defense as alive, on the theory that the plaintiff plainly knew it was coming. The rules ask a different question: whether the motion requested a ruling on the defense. The same availability logic runs the other way as well, since a defendant whose first motion attacks only the summons has necessarily been served with papers of some kind and knows enough about their delivery to challenge service in the same motion.⁴⁴

A reservation is also unnecessary for the defenses the rules never let a defendant lose by omission from the first motion. Rule 12(h)(2) forbids a second pre-answer motion for failure to state a claim or failure to join a required party, but it allows those defenses to be raised by pleading or by a post-answer motion any time before the close of trial, and lack of subject-matter jurisdiction may be raised whenever the court finds the defect.⁴⁵ A defendant that reserves failure to state a claim has added words the rules did not need, and a defendant that reserves insufficient process has added words that cannot save it.

No Special Appearance

Rule 12(b) ends with a sentence that matters more than its position suggests: no defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.⁴⁷ A defendant may therefore put the Rule 12(b)(4) objection of insufficient process in the same motion or answer as an attack on the complaint itself, and the joinder costs nothing.⁴⁸ The freedom looks obvious today only because federal practice has long offered it. Against the older practice that Rule 12 displaced, it is a real change, because under that practice the act of appearing could itself surrender a threshold objection. The earlier parts of this unit taught what Rule 12 requires: every available threshold defense belongs in the first motion or the first answer. This part explains what Rule 12 stopped requiring, and why the requirement it kept differs from the one it dropped.

Before the federal rules, a defendant that wished to object to the court’s jurisdiction, to venue, or to the sufficiency of process or its service typically appeared specially, and a misstep in the procedure often resulted in waiver of the defense.⁴⁹ A special appearance was a limited presence in the case: the defendant came before the court only to challenge its power to act, and could litigate that question without submitting to the court’s authority by the act of appearing.⁵⁰ The protection lasted only while the defendant asked for nothing more. If the defendant raised any objection or argument that the court could construe as a defense on the merits, the court could treat the appearance as general and conclude that the jurisdictional objection had been waived.⁵¹ The defendant therefore had to police every line of every filing, because the court decided afterward which requests belonged on the merits side of the line.

A 1964 decision, Koplin v. Saul Lerner Co., shows how little it took. The defendant entered a special appearance to object to the court’s jurisdiction and also moved to strike the complaint for vagueness, and the court held that by raising the vagueness issue the defendant had addressed a matter going to the merits and had thereby submitted to the court’s jurisdiction.⁵² The defendant lost its objection through what it asked the court to do, a hazard that had nothing to do with how good the objection was. The trap caught the careless defendant and the defendant with the strong objection alike.

Rule 12 removed that hazard. It makes no reference to a general or special appearance, it provides that every defense may be made in the responsive pleading or by motion, and it provides that no defense or objection is waived by being joined with another. On that text, the technical distinction between special and general appearances has been abolished.⁵³ A defendant may therefore move before answering to challenge personal jurisdiction and, in the same filing, move to dismiss for failure to state a claim, a ground that goes to the merits, and the jurisdictional objection survives.⁵⁴ The Ninth Circuit has described the aim of the arrangement as consolidating all pretrial defenses and objections by eliminating the distinction between general and special appearances.⁵⁵ A rule that lets every pretrial objection travel together serves the court and the plaintiff better than one that makes the defendant sort objections into protected and unprotected piles, because everything the defendant has to say about the threshold and the substance arrives at once and can be decided at once.

The Nevada Supreme Court traced the same shift in Hansen v. Eighth Judicial District Court, a state decision that applies Nevada’s own rule and is therefore not federal authority. Its value here is as a worked illustration of how Rule 12’s design displaced the older doctrine.⁵⁶ An earlier Nevada decision, Barnato, had held that adopting Rule 12 left the special and general appearance doctrine in place, so that a defendant who requested relief beyond what protected it from defective service made a general appearance.⁵⁷ Nevada then revised its Rule 12(b) to provide that lack of jurisdiction, insufficient process, and insufficient service of process are not waived by being joined with other defenses in a responsive pleading or pre-pleading motion.⁵⁸ Hansen concluded that no technical difference between the two kinds of appearance survived under the revised rule, so the doctrine had no remaining vitality and could no longer serve as a “trap for the unwary.”⁵⁹

The procedure the court described afterward is the federal design in miniature. Before answering, a defendant may move to dismiss for lack of personal jurisdiction, insufficient process, or insufficient service of process, and joining any of those grounds with other defenses waives none of them; alternatively, the defendant may raise the same defenses in its responsive pleading.⁶⁰ Because the revised Nevada text follows the federal rule, the description fits a federal defendant asserting insufficient process under Rule 12(b)(4).⁶¹

The process ground is sound because Rule 4(a)(1) requires the summons to state the time within which the defendant must appear and defend, and the merits ground leaves it untouched.⁶² Under the special-appearance rule applied in Koplin, the same combination of a threshold objection and a merits request cost the defendant its threshold objection.⁶³

Abolishing the special appearance changed what a defendant may ask for and left the deadline in place. In language Hansen quoted, the Third Circuit said that a defendant may now enter the case openly without giving up any key to the courthouse door that it held before coming in, and it added that the keys must still be used promptly.⁶⁴ Hansen’s own statement of the rule that remains is that objections to personal jurisdiction, process, or service of process are waived if they are not made in a timely motion or included in a responsive pleading such as an answer.⁶⁵ The court pointed to its counterparts of Rules 12(g) and 12(h)(1), which generally waive defenses relating to jurisdiction and the sufficiency of process or service unless they are raised by motion or included in the responsive pleading or in an amendment made as a matter of course.⁶⁶ Those are the state counterparts of the federal subdivisions taught in the preceding sections, so the Nevada decision and the federal rule agree on the limit.

The deadline survives because it protects a different interest than the special appearance did. The special appearance trapped defendants who asked for too much, while the deadline catches defendants who wait too long, and Rule 12 can safely demand that every threshold objection come in at the start precisely because joining objections is free. A defendant sued in Mississippi who defends on the merits without raising a jurisdictional objection loses it for good, since the defendant cannot raise it later in the Mississippi court and cannot raise it in Ohio when the plaintiff seeks to enforce the judgment there.⁶⁷ The raise-it-or-lose-it rule forces the objection out before the court and the plaintiff invest time in the merits, so a defendant cannot hold the objection back, try to win on the merits, and spring it later if things go badly.⁶⁸

The same logic reaches a defective summons. A defendant that answers on the merits while saying nothing about a missing clerk’s seal, as Okonkwo Logistics did in the earlier scene, has waived the process objection, and the end of the special appearance supplies no way to revive it.⁶⁹ The reservation language in Hunter v. Serv-Tech, Inc. recalls the older world, because the defendant there announced that it did not submit to the court’s jurisdiction and held its other rights in reserve, as though a limited presence could protect a defense. Under Rule 12 a defendant needs no limited appearance to keep an objection, and it keeps the objection only by making it in the first motion or in the answer.⁷⁰

An exam stem may describe a defendant as entering a special appearance or appearing only to contest the summons. In federal court that label adds nothing and subtracts nothing, so the analysis asks what the defendant included in its first motion or answer and whether it did so in time. A stem set in a state that still follows the special appearance rule changes the first half of that analysis. There the defendant waives its jurisdictional objection unless it raises the objection immediately, before pleading to the merits, and a request for additional relief can turn the appearance into a general one and forfeit the objection.⁷¹