## Facts

- Brian Hunter sued Serv-Tech, Inc., Offshore Contractors Limited (“Offshore”), and other defendants in the United States District Court for the Eastern District of Louisiana for injuries allegedly sustained in an offshore vessel accident.
- Hunter served process on Offshore.
- Offshore filed a pre-answer Rule 12 motion to dismiss for defective service/insufficient service of process.
- Offshore’s first motion included an “express reservation” stating it did not submit to the court’s jurisdiction and reserved the right to challenge personal jurisdiction, but the motion did not request dismissal for lack of personal jurisdiction under Rule 12(b)(2).
- Hunter filed an amended complaint on July 10, 2008.
- Offshore answered on September 11, 2008 and asserted lack of personal jurisdiction as an affirmative defense.
- Offshore’s initial service-based motion to dismiss was denied after Offshore acknowledged that service had been properly made.
- Offshore later filed a second motion to dismiss, this time under Rule 12(b)(2), arguing it lacked sufficient contacts with Louisiana for the court to exercise personal jurisdiction.
- Hunter opposed, arguing Offshore waived any personal-jurisdiction objection by omitting it from Offshore’s first pre-answer Rule 12 motion; Offshore responded that its “express reservation” preserved the defense and put the parties on notice.

## Issues

1. Whether a defendant waives a Rule 12(b)(2) personal-jurisdiction defense under Rules 12(g)(2) and 12(h)(1) by filing a pre-answer Rule 12 motion that omits the personal-jurisdiction objection.
2. Whether “express reservation” language in an initial Rule 12 motion preserves a personal-jurisdiction defense for a later Rule 12(b)(2) motion.

## Decision

- The court denied Offshore’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.
- The court held Offshore waived its personal-jurisdiction defense by filing an earlier pre-answer Rule 12 motion that did not include Rule 12(b)(2).
- The court ruled that Offshore’s “express reservation” of the right to challenge personal jurisdiction did not prevent waiver.
- Because waiver resolved the motion, the court did not decide whether Offshore had sufficient minimum contacts with the forum.

## Legal Principles

- Rule 12(g)(2) requires a party that makes a Rule 12 motion to include in that motion any then-available defenses listed in Rule 12(b)(2)–(5); a later Rule 12 motion cannot raise an omitted, available defense.
- Rule 12(h)(1) provides that lack of personal jurisdiction is waived if it is omitted from a Rule 12 motion subject to Rule 12(g)(2).
- A boilerplate “reservation of rights” statement in a Rule 12 motion is not the same as asserting the defense; a defendant must actually raise the personal-jurisdiction objection in the manner Rule 12 requires.
- Asserting lack of personal jurisdiction as an affirmative defense in the answer does not undo waiver already triggered by omitting Rule 12(b)(2) from an earlier pre-answer Rule 12 motion when the defense was available at that time.

## Conclusion

In *Hunter v. Serv-Tech, Inc.*, the Eastern District of Louisiana applied Rules 12(g)(2) and 12(h)(1) to hold that Offshore waived its personal-jurisdiction objection by filing a pre-answer Rule 12 motion that challenged service but did not move under Rule 12(b)(2). The court rejected Offshore’s attempt to preserve the defense through an “express reservation” in the first motion, denied the later Rule 12(b)(2) motion on waiver grounds, and did not reach the minimum-contacts merits.


Hunter v. Serv-Tech, Inc., 2009 WL 2858089 (2009)