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Rupp v. Hurley3/5/1999
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Together Rule 1-012(G) and Rule 1-012(H)(1) require consolidation of certain Rule 1-012(B) defenses in a party's initial pleading. As described by 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure ยง 1391, at 741-44 (2d ed. 1990) [hereinafter Wright & Miller]:
"According to Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process are waived if they are not included in a preliminary motion under Rule 12 as required by Rule 12(g) or, if no such motion is made, they are not included in the responsive pleading or an amendment as of right to that pleading."
"Thus, it now is clear that any time defendant makes a preanswer Rule 12 motion, he must include, on penalty of waiver, the defenses set forth in subdivisions (2) through (5) of Rule 12(b). If one or more of these defenses are omitted from the initial motion but were "then available" to the movant, they are permanently lost. Not only is defendant prevented from making it the subject of a second preliminary motion but he may not even assert the defense in his answer." (Footnotes omitted.)
Under Rule 1-012(H)(1), the defenses listed in Rules 1-012(B)(2), 1-012(B)(3), 1-012(B)(4) and 1-012(B)(5), are also lost to the defendant if they are not included in an answer filed before a Rule 1-012(B) motion. See Sundance Mechanical & Util. Corp. v. Atlas, 109 N.M. 683, 690, 789 P.2d 1250, 1257 (1990) ("Certain defenses (lack of personal jurisdiction, improper venue, insufficiency of process or service of process) must be asserted at the outset of an action; otherwise these defenses are waived."); cf. Stetz v. Skaggs Drug Ctrs., Inc., 114 N.M. 465, 470, 840 P.2d 612, 617 (Ct. App. 1992) ("The defense of lack of personal jurisdiction is subject to waiver when not properly a-sserted.").
{20} Here, Defendants chose to file an answer first. The answer did not include a defense challenging the sufficiency of process or of service of process. Defendants later filed a motion to dismiss two counts of Plaintiff's amended complaint for failure to state a claim. Again, Defendants did not include a Rule 1-012(B)(5) challenge in this motion. Applying the clear and unambiguous provisions of Rule 1-012(H)(1)(b), Defendants lost any Rule 1-012(B)(5) defense they may have had as of the time they filed their answer. See United States v. One 1978 Piper Cherokee Aircraft, 91 F.3d 1204, 1208 (9th Cir. 1996); United States v. 51 Pieces of Real Property, Roswell, N.M., 17 F.3d 1306, 1314 (10th Cir. 1994).
{21} Rule 1-012(G) and Rule 1-012(H) on their face therefore compel reversal of the order of dismissal unless Defendants can demonstrate why they do not apply or should not control the outcome here. We turn to Defendants' arguments against reversal.
1. Was Defendants' Motion Made Under Rule 1-012(B)(5)?
{22} Defendants state that their motion to dismiss should not be treated as a Rule 1-012(B) motion at all. Defendants assert generally that motions to dismiss for untimely service are governed by common law, case law, and rules of procedure, and are not necessarily governed by Rule 1-012(B). Thus, they claim that their motion "was properly treated as governed by the rule recognized in Prieto [v. Home Education Livelihood Program (H.E.L.P.), 94 N.M. 738, 616 P.2d 1123 (Ct. App. 1980),] and that it invoked essentially statute of limitations concerns, rather than being a motion specifically encompassed within our Rules of Civil Procedure." Defendants cite Prieto for the proposition that a trial court has inherent power, independent of statute, to "dismiss a case f
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