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Plummer v. Sherman11/16/2004
ry defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19.
Rule12(h)(1) provides for the waiver of the lack of personal jurisdiction defense if it is not raised in the initial motion or responsive pleading. This is unlike challenges to subject matter jurisdiction, which a defendant may raise and the court must hear at any time. When read in pari materia, the provisions of Rule 12 (b) and (h) require that a Rule 12 defense of lack of personal jurisdiction must be raised by a timely Rule 12 motion or, if no motion is filed, in the first responsive pleading. Otherwise, the defense is waived.
A motion based on Rule 12(b) defenses "shall be made before a pleading if a further pleading is permitted." In this case, Sherman filed a motion to dismiss for failure to prosecute on February 6, 2003. This occurred after she filed her answer on January 2, 2003. Although Sherman did assert a defense of failure to prosecute in her answer, this was not sufficient notice of the Rule 12(b)(2) defense of lack of jurisdiction over the person. Sherman was required to expressly raise the defense of lack of personal jurisdiction no later than her answer, but she did not do so. Her failure to expressly raise a lack of personal jurisdiction defense in a timely manner waived this defense. Once the defense was waived, it was inappropriate for the trial judge to revive the defense using Rule 41 when it had been waived pursuant to Rule 12(h)(1).
IV.
We next address the trial judge's conclusion that he could have allowed Sherman to amend her answer to include the lack of personal jurisdiction defense. Based on the record before us, we disagree.
There is authority for the proposition that a party may amend her initial Rule 12 motion or answer to add the defense of lack of personal jurisdiction. However, a defendant is not entitled to amend her answer to assert lack of personal jurisdiction at any time. To add the defense of lack of personal jurisdiction to an answer, Rule 12(h) requires that the amendment must be one "permitted by Rule 15(a) to be made as a matter of course." Rule 15(a) limits when an amendment may be made to a responsive pleading as a matter of course. It provides:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served.
It is undisputed that Sherman filed an answer in response to Appellants' complaint on January 2, 2003 and did not amend her answer to assert lack of personal jurisdiction within 20 days after it was served. Because Sherman did not assert the defense of lack of jurisdiction over the person in the manner required by Rule 12, the defense was waived.
V.
Accordingly, we REVERSE the decision of the Superior Court to dismiss the complaint for lack of personal jurisdiction and REMAND for further proceedings consistent with this opinion.
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