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1. P files and serves a complaint on Jan. 20. D makes no preanswer motions. On Feb. 1, D serves an answer denying some
of Ps allegations. The answer contains no counterclaims and
does NOT contain a defense of lack of personal jurisdiction. On
Feb. 2, Ds lawyer (not a USC grad) realizes for the first time that
the court may lack personal jurisdiction over D. Has Ds lawyer
waived the personal jurisdiction defense?
No. Rule 12(h)(1) governs when a defense of lack of personal
jurisdiction is waived. In this case, the defense was not waived
under 12(h)(1)(A) because Ds lawyer did not omit the defense
from a Rule 12 motion; D made no Rule 12 motions at all. In
addition, the defense is not waived under 12(h)(1)(B) because
there is still time for D to amend the answer as a matter of course
to add the defense. See Rule 12(h)(1)(B)(ii). Rule 15(a)(1)(A)
permits an amendment as a matter of course up to 21 days after
service of the answer, and only one day has passed in this case.
2. P files and serves a complaint on Jan. 20, seeking damages
for an alleged breach of contract. D responds on Feb. 1 with an
answer that denies several of Ps allegations and, in turn, includes
a counterclaim against P for breach of contract. On Feb. 22, P
serves and files an answer to the counterclaim. D now, on Feb.
23, wishes to add a counterclaim for negligence against P. Is it
too late for D to amend his answer as a matter of course?
No. Because the answer includes a counterclaim, it is a pleading
to which a responsive pleading is required for purposes of Rule
15(a)(1)(B). Under this provision, D has 21 days after the service
of Ps answer to the counterclaim to amend Ds answer as a
matter of course, and only one day has passed since service in
this case.