BREAKING -- Certain Rule 12 Defenses Can Be Waived if Not Raised in Initial Motion!

You know, you wake up in this business and everyday you can learn something new.

For example, according to this opinion by the 11th Circuit, you can apparently waive certain Rule 12 defenses if you don't raise them in your motion to dismiss:

Federal Rule of Civil Procedure 12(h)(1) states that some Rule 12 defenses are waived by failing to raise them in the initial Rule 12 motion, including improper venue: “a party waives any defenses listed in Rule 12(b)(2)–(5) by . . . omitting it from a motion in the circumstances described in Rule 12(g)(2).” This circuit has long recognized that “venue is a personal privilege to be raised by motion and the privilege may be waived.” Harris Corp. v. Nat’l Iranian Radio & Television, 691 F.2d 1344, 1349 (11th Cir. 1982). We have further recognized that for strategic reasons, and otherwise, defendants often waive their defense of improper venue. See Booth v. Carnival Corp., 522 F.3d 1148, 1153 (11th Cir. 2008)(“defendants can, and often do, waive their defenses of improper venue”). Our circuit has never recognized extraordinary circumstances as grounds for overlooking a defendant’s waiver of venue and we decline to do so here.

Wait a minute -- an "extraordinary circumstances exception" for not raising venue?

How did Magistrate Judge Bandstra and Judge King buy that one?

I gotta go back to see what Lyle Shapiro wrote to convince these esteemed jurists to accept that argument.

Ok, Lyle argued that the the allegations against his client are so intertwined with other defendants who have properly raised a forum selection clause defense that all the defendants and the case as whole should go to Mexico.

Aha, the Mexico exception -- pretty much the exact same gambit Clara and Myrtle executed upon hapless Aunt Bea in order to finagle a free trip to Mexico (Andy Griffith Show, Season 8, "A Trip to Mexico").

See Ma, I knew all those years of watching mindless sitcoms would finally pay off!

"Emergency" Motion For Contempt Backfires.

lippmanorder

One of the cases Steve Lippman took with him from RRA (Scott used to be counsel of record on the matter) involves a suit by Edward Bennett and Ace Technology Corporation against GFM Corp.

On January 21st, Lippman (on behalf of Ace) filed an emergency motion for contempt relating to some discovery that GFM allegedly failed to produce.

Without waiting for a response, Judge Bandstra entered an order on Thursday denying the motion.

It has some interesting language:

Reviewing the pleadings, and the procedural history of this case, the Court finds no basis for a finding of contempt or any further court order with respect to this discovery. The procedural history of this case reveals that the parties have continually failed to comply with discovery obligations imposed by the Court's rules resulting in a series of motions to compel and Court Orders to resolve such disputes. The instant "emergency" is another example of such conduct and results, in large part, from plaintiff's own delay in seeking the subject discovery in a timely manner and then delaying or agreeing to delay the review of these documents until almost two months after the Court Order requiring defendant's production. Plaintiff's motion for contempt explains the problem in obtaining this discovery but offers no explanation for its own lack of diligence in pursuing this discovery. Also, plaintiff fails to file the requisite memorandum of law with its motion citing any authority for an entry of contempt under the circumstances here. This, too, is a violation of the rules of this Court and constitutes a separate reason for the denial of this motion.

Ouch.

Boy, I wonder if anything was happening at RRA while all this was going on?