## Facts

- Bertram Emekekwue, a Pennsylvania resident, served as secretary of the Obosi Community Association of New York Inc. (OCA).
- Chinwe Offor, a New York resident, previously served as president of the OCA.
- After the death of Bertram’s ex-wife, Vanessa Emekekwue, Bertram sought financial benefits from the OCA for their children.
- Offor sent an email to OCA members about whether the OCA should provide benefits; the email accused Bertram of contributing to Vanessa’s death by terminating her medical insurance.
- Bertram sued Offor in the United States District Court for the Middle District of Pennsylvania, asserting defamation (libel) and additional tort claims (including emotional-distress claims) and seeking punitive damages.
- On December 7, 2011, Offor filed a pre-answer motion to dismiss that raised both Rule 12(b)(2) (lack of personal jurisdiction) and Rule 12(b)(6) (failure to state a claim).
- Before the court ruled, Bertram filed an amended complaint (December 16, 2011).
- Offor then filed an amended motion to dismiss directed to the amended complaint, but the amended motion argued only Rule 12(b)(6) and did not renew, reference, or incorporate the personal-jurisdiction argument.
- On May 15, 2012, the court dismissed all claims except defamation.
- On June 1, 2012, Offor answered the amended complaint and listed lack of personal jurisdiction as an affirmative defense.
- On July 24, 2012, Offor moved for summary judgment on one ground only: lack of personal jurisdiction.

## Issues

1. Whether a defendant waives a Rule 12(b)(2) lack-of-personal-jurisdiction defense by filing an amended Rule 12 motion directed to an amended complaint that omits the personal-jurisdiction defense previously raised.
2. Whether, after that omission, the defendant may revive the personal-jurisdiction defense in the answer and obtain summary judgment on that basis.

## Decision

- The court denied Offor’s motion for summary judgment.
- The court held that Offor waived the lack-of-personal-jurisdiction defense under Rules 12(g) and 12(h) by not including (or incorporating) that defense in her amended pre-answer Rule 12 motion directed to the amended complaint.
- Because the defense was waived, the court did not reach whether Offor had sufficient contacts with Pennsylvania to permit personal jurisdiction.

## Legal Principles

- Under Rule 12(g)(2), a defendant who makes a pre-answer Rule 12 motion must include all Rule 12 defenses then available; the defendant cannot omit an available defense from the motion and later attempt to raise it by motion.
- Under Rule 12(h)(1), lack of personal jurisdiction is waived when a defendant makes a Rule 12 motion but fails to include the personal-jurisdiction defense in that motion.
- When a plaintiff files an amended complaint and the defendant responds with an amended Rule 12 motion, the amended motion is treated as the operative Rule 12 motion for purposes of Rules 12(g) and 12(h).
- A defendant cannot avoid Rule 12 waiver by listing lack of personal jurisdiction as an affirmative defense in the answer after omitting it from an operative pre-answer Rule 12 motion.
- Once waived, the lack-of-personal-jurisdiction defense cannot be used as the sole basis for summary judgment.

## Conclusion

In *Emekekwue v. Offor*, the court ruled that Offor forfeited her personal-jurisdiction objection by filing an amended pre-answer Rule 12 motion that omitted the Rule 12(b)(2) defense, even though she had raised it in her initial motion to dismiss; as a result, she could not resurrect the defense in her answer or through a summary-judgment motion, and the case proceeded on the remaining defamation claim.


Emekekwue v. Offor, 2012 WL 5249414 (2012)