MBE Rules · Civil Procedure
Waiver of Rule 12 Defenses
FRCP 12(g)-(h)
The rule
Personal jurisdiction, venue, process, and service objections are waived unless raised in the first Rule 12 motion or responsive pleading; failure to state a claim survives until trial, and subject-matter jurisdiction is never waived.
In plain English
Under Rule 12, certain defenses like personal jurisdiction, venue, process, and service must be raised early in a case, either in the first motion or in the initial response to a complaint. If these defenses are not raised at that point, they are considered waived. However, the defense of failure to state a claim can be raised later, and subject-matter jurisdiction can never be waived.
Worked example
In a lawsuit, Defendant fails to include an objection to personal jurisdiction in their first motion or their answer. Later, they attempt to argue that the court lacks personal jurisdiction over them. The court rules that the objection is waived because it was not raised in a timely manner.
Memory hook
Raise your defenses early or risk losing them forever!
The trap
Exams may present a scenario where students overlook the timing of raising defenses, leading them to incorrectly believe they can raise personal jurisdiction later in the case.
How examiners test it
Questions often test the timing of raising specific defenses and may include fact patterns that mislead students into thinking they can raise waived defenses at any time.
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