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Rupp v. Hurley3/5/1999
that is, when they realized the original complaint against them had been filed in June 1994. In addition, Defendants argued that Plaintiff herself had "waived her right to raise waiver as a defense" by failing to make her argument prior to the evidentiary hearing Plaintiff had requested.
{17} The parties' arguments at the hearing on the post-trial motions were essentially duplicative of their prior positions. In ruling on the post-trial motions, the trial court specifically emphasized--as a courtesy to Plaintiff and "to any reviewing tribunal"--that it had always considered Defendants' motion to be based on Rule 1-012(B)(5) and that it had entered its order of dismissal under Rule 1-012(B)(5). The order denying Plaintiff's post-trial motions reiterated that "the Order for Dismissal entered January 29, 1997 was entered pursuant to SCRA 1986 1-012 (B) 5 , and it was considered as a Motion to Dismiss for Insufficiency of Service of Process, and the Plaintiff's Motions are not well taken and should be denied."
DISCUSSION
{18} Rule 1-012(B) provides in pertinent part:
"B. How presented. Every 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 1-019."
Rule 1-012(B) thus allows the option of stating the listed defenses to a complaint by answer (the responsive pleading) or by motion. See id.
{19} Whether defendants choose to proceed by answer or motion, the initial response is subject to the provisions of Rules 1-012(G) and 1-012(H), which provide:
"G. Consolidation of defenses in motion. A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Subparagraph (2) of Paragraph H of this rule on any of the grounds there stated."
"H. Waiver or preservation of certain defenses."
"(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process is waived:"
"(a) if omitted from a motion in the circumstances described in Paragraph G of this rule; or"
"(b) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 1-015 to be made as a matter of course."
"(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 1-019 and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 1-007, or by motion for judgment on the pleadings, or at the trial on the merits."
"(3) Whenever it appears by suggestions of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
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