Hierarchy of Rule 12 defenses
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Revision as of 20:10, 4 November 2010
FRCP Rule 12(g) and 12(h) read to create a hierarchy of defenses.
A party must join all desired defenses in a pre-answer motion.
12(h)(1) – Disfavored defenses
Lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process
These defenses are waived forever if omitted from pre-answer motion. If no pre-answer motion is made and these defenses are omitted from the answer, they are, again, waived forever.
12(h)(2) – Favored defenses
Failure to state a claim upon which relief can be granted, failure to join an indispensable party, failure to state a legal defense to a claim
These defenses can be made in any pleading, or by motion for judgment on the pleadings, or at trial on the merits.
12(h)(3) – Most favored defense
Lack of jurisdiction on the subject matter
This defense can be made at any time.