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Hunter v. Serv-Tech, Inc. - 2009 U.S. Dist. LEXIS 85732 (E.D. La. Aug. 27, 2009)


The requirement that a court have personal jurisdiction over the parties is a due process right that may be waived either explicitly or implicitly.


Hunter filed a suit against Offshore, among others, in November of 2007. Offshore filed a motion to dismiss for insufficiency of service of process in June of 2008. By leave of Court, Hunter filed an amended complaint on July 10, 2008. He then filed his response to the motion to dismiss on July 22, 2008. On July 25, 2008, Defendants including Offshore Contractors filed a motion to amend/correct the motion to dismiss to add documents that had inadvertently not been attached, as well as leave to file a reply to Hunter's opposition to the motion to dismiss. Both motions were granted. Offshore answered on September 11, 2008, raising lack of personal jurisdiction as its third affirmative defense. The Court ordered supplemental briefing on the motion to dismiss. The motion to dismiss was eventually granted in part and denied as moot as concerns Offshore, since Offshore concluded that Hunter had perfected service. The motion of concern here was filed on July 27, 2009. Offshore argues that it does not have minimum contacts with the Eastern District of Louisiana for the exercise of the Court's jurisdiction over it to comport with due process. While not conceding the lack of such contacts, Hunter and Dynamic argue that Offshore has waived personal jurisdiction pursuant to Rules 12(g)(2) and 12(h)(1) by filing a pre-answer motion to dismiss without joining its personal jurisdiction argument in the motion. Offshore responds that "reservation" language cited in the first motion to dismiss is sufficient to put Hunter and other parties on notice that it challenged personal jurisdiction and that it has accordingly not waived the defense. The court denied Offshore Contractors' motion to dismiss for lack of personal jurisdiction.


Did the corporation waived its objection to personal jurisdiction when it filed a pre-answer motion to dismiss without joining its personal jurisdiction argument in the motion.




Rule 12(h)(1) of the Federal Rules of Civil Procedure requires that objections to personal jurisdiction, venue, and service of process be raised in a party's first responsive pleading. Under this rule, defendants wishing to raise any of these four defenses must do so in their first responsive pleading, either a Rule 12 motion to dismiss or an answer, or the omitted defense is waived. 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." Fed. R. Civ. P. 12(g)(2). Accordingly, under 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 of the defenses delineated in Rule 12(b)(2)-(5) in a pre-answer motion to dismiss, that defense is waived. The language of these two rules, 12(g)(2) and 12(h)(1), with their use of phrases such as "make it by motion" and "makes a motion," suggests that to preserve its 12(b)(2)-(5) defenses prior to answering, a party cannot simply "assert" or "reserve" the defense, but must actually argue that defense in a motion that prays the Court to enter a ruling or order. Given this policy, Offshore's "reservation" language is not sufficient to preclude waiver pursuant to Rules 12(g)(2) and 12(h)(1).

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