Defenses That Survive

Rule 12 sorts its defenses into three tiers, and the tiers track how easily a party can lose each defense. At the bottom sit the four technical defenses: personal jurisdiction, venue, process, and service of process. A party waives them by omitting them from a Rule 12 motion in the circumstances Rule 12(g)(2) describes, or, if it makes no motion, by failing to make them by motion or to include them in a responsive pleading or in an amendment allowed as a matter of course.¹ Only the four defenses listed in Rule 12(b)(2)–(5) are waived this way.² In the middle tier are three merits-related defenses that survive omission and may be raised at later stages of the case. At the top is subject-matter jurisdiction, the only defense that may be raised at any point in the litigation, even on appeal.³ Rule 12(h)(2) governs the middle tier, and Rule 12(h)(3) governs the top.

Merits Defenses Preserved

Three defenses escape the waiver rule that governs the technical four: failure to state a claim upon which relief can be granted, failure to join a person required by Rule 19(b), and failure to state a legal defense to a claim.⁴ The first is the familiar Rule 12(b)(6) defense.⁵ A party that leaves any of the three out of an early motion or an answer has not lost it, because Rule 12(h)(2) names three later occasions on which it may still be raised: in any pleading allowed or ordered under Rule 7(a), by a motion under Rule 12(c), or at trial.⁶

That survival answers one question and leaves another untouched. Does the defense still exist? Yes, on each of the occasions the rule lists. May the defendant raise it in a second pre-answer motion? Usually not, because Rule 12(g)(2) bars a second pre-answer motion on a ground that was available when the first motion was made.⁷ The two rules restrict different things: one controls the vehicle, the other the life of the defense.

Goliath's case shows both rules acting on one defense. His first pre-answer motion, attacking service of process, is denied, and he then serves a second pre-answer motion asserting failure to state a claim. The second motion fails, because the ground was available when he made the first.⁸ The defense itself survives, for Rule 12(g) blocks only another pre-answer motion on that ground.⁹ Rule 12(h)(2) lets Goliath raise it in his answer, by another motion after pleading, or at trial, and an answer is a pleading allowed, indeed required, by Rule 7(a).¹⁰

The bar turns on the word available. Suppose Goliath's first motion attacked service because no copy of the complaint was ever served on him. He would not then have known what the complaint alleged and would have had no ground to move under Rule 12(b)(6), so the defense was not available when he filed. A second pre-answer motion would be open to him.¹¹

The three occasions Rule 12(h)(2) names follow the life of a case:

A pleading allowed or ordered under Rule 7(a). The answer is the natural vehicle, because Rule 7(a) both allows and requires it.¹²
A motion under Rule 12(c). It lets the defendant seek a ruling after the pleadings are filed, without waiting for trial.¹³
Trial, where the defense can be pressed as an independent defense that does not turn on the evidence presented on the merits of the dispute.¹⁴

The Rule 12(c) route carries one caution. When a party moves for judgment on the pleadings and matters outside the pleadings are presented to the court and not excluded, the motion is treated as one for summary judgment under Rule 56, and the parties may then put the merits of the case before the court.¹⁵ A defendant who wants a ruling confined to the pleaded facts should keep the motion within the pleadings.

Why does the law forgive the omission of these defenses while punishing the omission of personal jurisdiction or venue? The technical defenses should be evident to a defendant right at the start of the action, because the defendant knows whether it was served properly and whether the forum has sufficient contact with it. They also typically only delay a lawsuit, until the plaintiff picks the right court or perfects service, rather than end it, so the waiver rule reflects a sense that they ought to be decided up front, in time for a cure or a refiling.¹⁶ Failure to state a claim is different. It is too fundamental an objection to be subject to rigid early waiver requirements,¹⁷ and forcing a party to waive a meritorious objection to an insufficient pleading because it was not raised first would lead to recovery on imaginary legal claims or the denial of recovery based on imaginary defenses. It would also waste the expense of a trial on a claim that, if proved, would have no legal effect.¹⁸

The list of occasions ends with trial. It names none afterward, so a defendant who stays silent through trial and raises the defect only after the verdict has no listed occasion left. Nor must a defendant wait for trial: a defense included in the answer is heard before trial, on any party's application, unless the court chooses to defer it, a point the next section takes up.¹⁹

Two errors recur on this material. Some students read preserved to mean that a second pre-answer motion is open, when Rule 12(g)(2) still closes that door unless the ground was unavailable the first time. Others apply the first-response waiver of the four technical defenses to these three, treating them as lost for omission from a motion or an answer, when the rule's list of occasions reaches trial.

Subject-Matter Jurisdiction Never Waived

Subject-matter jurisdiction escapes even the limit of trial. Rule 12(h)(3) provides that if the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.²² The words at any time remove every deadline that governs the other defenses in this chapter, and must removes the judge's discretion once the court finds the defect. The sentence does not say who brings the defect to light, so either party may raise it at any point.²³

Subject-matter jurisdiction, Rule 12(b)(1), is absent from the list of waivable defenses, which reaches only the four in Rule 12(b)(2)–(5).²⁴ The absence follows from whose interest each defense serves. Personal jurisdiction is a procedural protection that the Fourteenth Amendment gives the defendant, so a defendant willing to litigate in the plaintiff's chosen state may waive it, and the rules treat a failure to object by the prescribed procedure as consent.²⁵ Subject-matter jurisdiction concerns the court's constitutional authority to hear a case, and without that power the court's decisions can have no legal effect, so the parties have no authority to waive it.²⁶ Silence about personal jurisdiction consents to something the defendant owns. Silence about subject-matter jurisdiction consents to nothing that matters.

Because the objection belongs to no party, it never expires. A party may raise it in the responsive pleading or by a separate motion to dismiss, may raise it at trial, and may raise it for the first time on appeal. The court itself has an independent obligation to inquire into its jurisdiction and may raise the question on its own at either the trial or the appellate level. In sum, there are no real restrictions on raising the defense during the proceedings.²⁷ That reach rests on the limited authority federal courts hold under the dual sovereignty of our federal system, and of the Rule 12(b) defenses only this one carries it.²⁸ Cases have even been dismissed on the Supreme Court's own motion because the federal district court lacked subject-matter jurisdiction.²⁹ Removal practice draws the same line: a motion to remand for lack of subject-matter jurisdiction may be made at any time before final judgment, while objections such as a late notice of removal are waived unless asserted within thirty days after removal.³⁰

The any-time rule does not make late challenges welcome. Rule 12 aims to settle the court's authority at the threshold, because its function as the legal gatekeeper to the system would be compromised if jurisdiction could be determined only after considerable immersion in the merits.³¹ The Rules nonetheless refuse to foreclose the defense however late it arrives, because a court without the power to hear a case issues decisions with no legal effect.³²

Rule 12(g)(2) seems at first to point the other way. It forbids a party that has made one Rule 12 motion from making another on a defense that was available and omitted, so a defendant who left subject-matter jurisdiction out of a first motion might appear barred from raising it in a second. The bar, however, opens with an exception for what Rule 12(h)(2) and (3) provide.³³ Rule 12(h)(3) supplies the rest by authorizing either party to raise the defense at any time.³⁴ The merits defenses of the previous subsection show the contrast. Failure to state a claim survives an omission but cannot be pressed in a second pre-answer motion, while the any-time language reaches even a second motion on subject-matter jurisdiction.

The two grounds sit in one paper, were available on the same day, and follow the same denied motion, so the only fact that changes the outcome is which defense each raises. Venue belongs to Dwight, and Rule 12(h)(1)(A) waives it because he omitted it from a motion in the circumstances Rule 12(g)(2) describes.³⁵ Shared citizenship goes to the court's own authority, so the court must act once it determines the defect, however late Dwight speaks and even if the court spotted the problem unprompted. The same result would follow if the objection first surfaced on appeal after a full trial, because the rule sets no deadline.³⁶ At the other pole, a defendant who defends on the merits without objecting to personal jurisdiction cannot raise the point later, whether by direct attack or in a later enforcement action.³⁷

Exam answers go wrong by treating the two kinds of defect alike. One version declares subject-matter jurisdiction waived because the first motion omitted it, which borrows the logic of Rule 12(h)(1) for a defense that rule never lists. The other assumes the court may act only if a party asks, when the court has its own duty to dismiss whenever it determines that jurisdiction is lacking.