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Rupp v. Hurley3/5/1999
l difficulties involved in meshing Rules 1-012(G) and 1-012(H) and Rule 1-015(B). See Giotis v. Apollo of the Ozarks, Inc., 800 F.2d 660, 663-64 (7th Cir. 1986). The court in Giotis was able to avoid "this difficult issue" because the defendant there "failed to timely raise the applicability of Rule 15(b)" on appeal and thus had waived its waiver of the waiver argument. Id. at 664. The brief attention paid to the issue in Giotis is indicative of the potential difficulty of the area.
{38} Fortunately, we need not decide this difficult issue here because Plaintiff raised her Rules 1-012(G) and 1-012(H) waiver arguments before trial and that made it timely under Rule 1-012(H)(2).
{39} Rule 1-012(H)(2) preserves the defenses of "failure to state a claim upon which relief can be granted" (Rule 1-012(B)(6)), failure to join an indispensable party (Rules 1-012(B)(7) and 1-019 NMRA 1999), and "failure to state a legal defense to a claim," at least through trial on the merits. Of the three, clearly only the third--"failure to state a legal defense to a claim"--is relevant to the question of whether Plaintiff lost her waiver argument. We must determine the meaning of the defense of "failure to state a legal defense" and whether Plaintiff waived this defense here.
{40} Despite the fact that the language of the two rules is not identical, Professors Wright and Miller characterize the failure to state a legal defense as synonymous with an "insufficient defense" that may be stricken by motion pursuant to Rule 1-012(F). See 5A Wright & Miller § 1385, at 728 ("The ban against successive pre-answer motions extends to the three `substantial defenses' listed in Rule 12(h)(2) . . . [including] failure to state a legal defense to a claim (Rule 12(f))."), § 1392, at 757-58 ("Rule 12(h)(2) expressly preserves three defenses against waiver during the pleading, motion, discovery, and trial stages of the action[, including] . . . the Rule 12(f) objection of failure to state a legal defense.") Our search revealed no published opinions equating Rule 1-012(H)(2)'s "failure to state a legal defense" with Rule 1-012(F)'s "insufficient defense" but there is at least one unpublished decision that adopts that view. See EP Operating Ltd. Partnership v. Placid Oil Co., Civ. A. No. 93-0257, 1994 WL 507455, at *2 (E.D. La. Sept. 14, 1994) (minute entry) (quoting 5A Wright & Miller § 1385, at 728). And the Advisory Committee responsible for amending federal Rules 12(f) and 12(h) in 1966 indicated its intent that the rules be construed in that way:
"It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)) . . . are expressly preserved against waiver by amended subdivision (h)(2) and (3)." 12A Wright & Miller App. C, at 221 (1998) (quoting Fed R. Civ. P. 12(h) advisory committee's note) (emphasis added).
{41} Taking the Advisory Committee's note at face value, we must decide whether, by raising the defense of insufficiency of service of process only after they filed their answer and subsequent Rule 1-012(B)(6) motion, Defendant's "fail to state a legal defense to [Plaintiff's] claim," or raised an "insufficient defense," such that Plaintiff had a defense to the defense pursuant to Rule 1-012(H)(2). "What constitutes an insufficient defense depends, of course, upon . . . the defense in question." 5A Wright & Miller § 1381, at 661. An insufficient defense may, however, be a "procedurally defective defe
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