Common Waiver Traps

Rule 12(h)(1) decides every waiver problem in this chapter, and it measures what a party filed, not what the party meant to preserve. A party waives a defense listed in Rule 12(b)(2) through (5) (lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process) in one of two ways. A party that moves under Rule 12 waives the defense by omitting it in the circumstances Rule 12(g)(2) describes.¹ A party that has made no motion waives it by failing to make it by motion under the rule² or to include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.³

Each operative verb in that text describes an act in a paper: omit a defense from a motion, make it by motion, include it in a pleading. A waiver problem therefore reduces to one question: which filing carried the defense, and which filing left it out? A test built on the defendant’s intentions would let a defendant hold an objection in reserve while everyone else proceeded as though the forum were accepted. Courts refuse that. A defendant may not hold back its personal-jurisdiction objection and spring it on the plaintiff later if things go badly on the merits.⁴

Three situations tempt students to reason from notice, fairness, or the choice of forum instead of from the filings. A defendant announces that it is reserving a defense. A defendant removes the case before responding. A judge notices on her own that the forum has no power over the defendant, after the defendant has let the objection go. In each, ask which paper made the defense or left it out.

Reservation-of-Rights Language

A defendant that moves on one ground and worries about losing others sometimes adds a sentence announcing that it reserves them. The rules provide no such device. Their preservation language asks a party to “make it by motion under this rule,”⁵ and their omission rule turns on what a motion left out.⁶ Both look to what the defendant put before the court, and a promise about the future puts nothing before it.

Hunter v. Serv-Tech, Inc. shows the result. Offshore’s first motion to dismiss, aimed at service, was denied as moot when Offshore conceded that the plaintiff had perfected service. Offshore then moved to dismiss for lack of personal jurisdiction, arguing that it lacked minimum contacts with the Eastern District of Louisiana. The plaintiffs, Hunter and Dynamic, answered that Offshore had waived the defense under Rules 12(g)(2) and 12(h)(1) by filing its original pre-answer motion without it.⁷ Offshore had relied on “reservation” language. The court held that the language did not prevent waiver, that the second motion was barred, and that Offshore had waived personal jurisdiction.⁸

The court began with the words of the rules. Rules 12(g)(2) and 12(h)(1) speak of a party that must “make it by motion” or “makes a motion.” To preserve a Rule 12(b)(2) through (5) defense before answering, the court reasoned, a party cannot simply “assert” or “reserve” it. The party must argue the defense in a motion that prays the court to enter a ruling or order.⁹ That reading tracks what a motion is, an application to the court. A reservation applies for nothing. It gives the court no question to decide and gives the plaintiff no objection to cure.

The policy behind the text explains why courts will not bend it. As written, the Rules require every Rule 12(b)(2) through (5) defense to be made by motion, once, before the answer is filed.¹⁰ If a reservation could preserve a defense, every defendant would append one to its first motion, the bar on successive motions would restrain no one, and the plaintiff would learn which defenses were contested one ruling at a time. The answer offers no second chance either. A defendant that omitted the defense from its pre-answer motion could not revive it by sticking it in the answer or by filing a second motion.¹¹ And because only the four defenses in Rule 12(b)(2) through (5) are waived by omission,¹² a reservation fails to protect precisely the defenses that need protecting.

The court did not pretend the result was comfortable. It called the outcome harsh, since absent waiver the personal-jurisdiction motion might well have been granted, but it was duty-bound to apply the law as written.¹³ The strength of the omitted defense therefore plays no part. Waiver asks whether the defense was made by motion, and it does not ask whether the defense would have won.

Tamsin’s paper told the court that a challenge might come, and Orrin’s paper gave the court a challenge to decide. Orrin keeps its defense because the motion asked for a ruling on it, and Tamsin loses its defense because no request for a ruling on it was ever put before the court.¹⁴ The usual exam error is to answer that the reservation gave fair notice, or that the omitted defense was too strong to forfeit. The rule asks only whether the first motion argued the defense.

Removal Is Not a Response

A notice of removal is neither a Rule 12 motion nor a responsive pleading, so it cannot waive a Rule 12(b)(2) through (5) defense. The text of Rule 12(h)(1) is the reason. A defendant loses these defenses by omitting them from a Rule 12 motion,¹⁶ or, if it made no motion, by failing to make them by motion¹⁷ or to include them in a responsive pleading or an amendment as a matter of course.¹⁸ Nothing in that text reaches a paper that does neither.

Consider what removal consists of. The defendant files a notice of removal in the federal district court for the district and division where the action is pending. 28 U.S.C. § 1446(a). Promptly afterward, it gives written notice to the adverse parties and files a copy with the clerk of the state court, which achieves the removal and divests the state court of jurisdiction.¹⁹ The case must be one over which the federal courts would have had original jurisdiction had it been filed there, as when the plaintiff asserts a right to relief under federal law.²⁰ Each step moves the case, and none of them responds to the complaint.

Students often find waiver anyway. They reason that the defendant should have objected at once and that the notice of removal was its first act in the case. The Supreme Court rejected that inference in 1929. When the petitioner in Morris & Co. v. Skandinavia Insurance Co., 279 U.S. 405, 409, suggested that removal had waived the objection to jurisdiction over the person, the Court answered, “Our decisions are to the contrary.” Filing a notice of removal does not waive any challenge to personal jurisdiction.²¹

The rule fits the purpose of waiver. A defendant that appears and files responsive papers without objecting signals its consent, because personal jurisdiction may be acquired in just that way.²² Removal sends no such signal. It leaves the defendant free to make the objection in its first federal motion, which is where the waiver text looks next.

The papers that count are the ones before and after the removal. Removal cannot erase what the defendant filed beforehand. In a state whose waiver rule tracks the federal text, an answer that omits the defense has already lost it, because a responsive pleading that leaves the defense out is the omission Rule 12(h)(1) describes.²³ Nor does removal excuse the defendant afterward. The first federal motion is a Rule 12 motion like any other. A removing defendant that moves only to dismiss for failure to state a claim, and leaves out an available personal-jurisdiction objection, has omitted a defense from a Rule 12 motion and cannot make a second pre-answer motion on it.²⁴

Hypothetical Illustration

Three defendants are sued by different plaintiffs in a state court whose waiver rule follows the federal text, and none has any contact with the state. Dunmore files nothing in state court, removes the case, and moves under Rule 12(b)(2) to dismiss for lack of personal jurisdiction. His defense is intact, because his only earlier paper was a notice of removal. Corliss files an answer that denies the main allegations and says nothing about jurisdiction, then removes and makes the same motion. Her answer was a responsive pleading that omitted the defense, so the defense was lost before the case ever moved. Lyle removes without filing anything in state court and moves in federal court to dismiss only for failure to state a claim. The court denies that motion, and his later Rule 12(b)(2) motion is barred, because his first federal motion omitted an available defense.

All three removed their cases the same way, and the removal changed nothing for any of them. Dunmore kept his defense because nothing he filed omitted it. Corliss and Lyle lost theirs through papers that were pleadings or motions. To resolve a removal problem, find those papers.

Some practitioners state the personal-jurisdiction challenge in the notice of removal anyway, a belt-and-suspenders step taken just to be safe.²⁵ The law does not require it, since removal puts no defense at risk. The sentence also cannot rescue a defense that the first federal motion or answer omits. A notice is not a Rule 12 motion or a responsive pleading, which is the same limit that defeated Offshore’s reservation.

The usual exam error is to find waiver in the notice of removal because it did not mention personal jurisdiction. The questions to ask are what the defendant filed in state court and what its first federal response contains.

Court Cannot Revive Waived Defenses

Until now, waiver has been the defendant’s loss: the defense leaves the case, and the defendant cannot restore it by a second motion or by the answer.²⁹ A different question is whether the court can restore it. A judge who sees that the forum has no connection to the defendant may feel entitled to dismiss on that ground whether or not anyone asked. Uffner v. La Reunion Francaise says no: “Once a party has waived its defense of lack of personal jurisdiction, the court may not, sua sponte, raise the issue in its ruling on a motion to dismiss.”³⁰ Sua sponte means on the court’s own initiative.

The prohibition rests on two reasons. The first is consent. Personal jurisdiction may be acquired through voluntary appearance and the filing of responsive pleadings without objection, so a court has no independent reason to visit the issue once the defendant has stayed silent.³¹ Courts treat a defendant as entitled to waive personal jurisdiction and seek a judgment on the merits,³² and a judge who dismisses anyway overrides that choice. The second reason is fairness. The prohibition avoids prejudicing the plaintiff, who has had no opportunity to respond to an issue that no one raised, and it promotes the purpose of Rules 12(g) and (h).³³ The Third Circuit has added a procedural check of its own: a court may not dismiss sua sponte for lack of personal jurisdiction without first letting the plaintiff file a curative amendment.³⁴

The prohibition has narrow exceptions. Courts can consider personal jurisdiction on their own more freely when a litigant proceeding in forma pauperis (without prepaying court fees) brings a claim under 28 U.S.C. § 1915, and when deciding whether to enter a default judgment against a defendant who never appeared.³⁵ The default setting shows why. A defendant who never appeared has consented to nothing, so the court is checking its own power before it binds an absent party.

Compare the defendant who has appeared and moved on other grounds. Its choice to leave personal jurisdiction out of that motion is its consent, and the court cannot undo it. Subject-matter jurisdiction is different in kind. It is not one of the four defenses that omission waives,³⁶ and a later section takes it up.

The usual exam error is to reason that a court may dismiss whenever it sees that it lacks power over the defendant. For personal jurisdiction, ask first whether the defendant has already waived the defense. If it has, the court’s own view of the forum’s connections is beside the point, unless the case falls within a narrow setting such as a default.