Civil Procedure Glannon: Motions to Dismiss under Fed R. Civ. Pro 12
Here is a case from my Civil Procedure Course, which explains the importance of filing all Affirmative Defenses (or motions to dismiss) in the first responsive pleading–if not in your pre-trial answer. In this case, failing to do so will drag you back into court.
Case Name, Citation Number, Author
Hunter v. Serve-Tech, Inc., 6 Cal.4th 1174
Hunter sued offshore (Serv-tech) on 11/19/2007. Offshore filed a motion to dismiss for insufficiency of service of process on 6/19/2008. Hunter then filed an amended complaint, then Offshore raised lack of Personal Jurisdiction as its third Affirmative Defense.
After Offshore conceded that Hunter had perfected service, Offshore again moved to dismiss for lack of Personal Jurisdiction on grounds that it lacked minimal contacts with Eastern District of Louisiana. Hunter opposed the motion arguing:
(1) Offshore waived Personal Jurisdiction pursuant to Rules 12(g)(2) and 12(h)(1), by filing it’s original pre-answer motion to dismiss without including it’s Personal Jurisdiction Defense in the motion.
(2) Offshore responded that the “reservation” language cited above in the original motion to dismiss was sufficient to put Hunter and other parties on notice that it challenged Personal Jurisdiction and that it had accordingly not waived the defense.
–11/19/2007: Hunter sued Offshore (Serv-Tech) and others.
–6/19/2008: Offshore filed a motion to dismiss for insufficiency of service of process. Defendants does not submit to the jurisdiction of this court. Defendants expressly reserve all rights to challenge the Subject Matter Jurisdiction and/or Personal Jurisdiction of this court over Defendants and/or raise other defenses to this claim.
–7/10/2008: Hunter filed an amended complaint
–9/11/2008: Offshore answered, raising lack of Personal Jurisdiction as its 3rd Affirmation
Did the Defendant raise Lack of Personal Jurisdiction in their first responsive pleading? At-all? And not just reserving.
No because offshore failed to raise lack of Personal Jurisdiction defense in their first responsive pleading, therefore he lost privileges to raise all Affirmative Defenses (including Personal Jurisdiction) in the subsequent pleadings
Rule 12(h)(1): requires that Personal Jurisdiction, venue, and service of process must be raised in the party’s first responsive pleading. *Defendants wishing to raise any of these 4 defenses must do so in their first responsive pleading, either a motion to dismiss or an answer. If not, the omitted defense is waived.
Rule 12(g)(2): a party that makes a motion to dismiss under Rule 12(b) prior to answering must consolidate all its Rule 12 defenses into one motion.
*If it omits any defenses delineated in Rule 12(b)(2)–(5) Go to Notes in a pre-answer motion to dismiss, that defense is waived.
–All Defenses under Rule 12(b)(2)-(5) must be made by motion once prior to filing
–Offfshore’s “reservation” language is not sufficient to preclude waiver pursuant to Rules 12(g)(2) and Rule 12(h)(1)
–Rule 12(g)(2) is specific about what a litigant must do to avoid waiving his 12(b)(2)-(5) defenses if he chooses to move for dismissal prior to answering: “A party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. Rule 12 (g)(2)
–“Reserve” is not good enough
Offshore contractor’s motion to dismiss for lack of Personal Jurisdiction is Denied
Rule 12(b)(2)-(5) Defenses
(2) Lack of Personal Jurisdiction (Does the court have the power to drag a person in court?)
(3) improper venue (wrong court to sue a defendant in)
(4) insufficient process (wrong summons of which to serve a defendant)
(5) insufficient service of process (wrong method to serve a defendant with summons)
THE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
—Mitchell v. Archibald & Kendall (Example of 12(b)(6): failure to state claim—parking lot safety)
Takeaway: If the complaint does not allege a legal wrong, there is no need for the court to adjudicate the underlying facts at all. Plaintiff failed to adequately state breach of duty of care
Under Rule 12(h)(1) raise all Affirmative Defenses in your first responsive pleading, no matter what. When in doubt list them all, the first time around–and do not reserve them for later!
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