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Federal Rules of Civil Procedure (FRCP) QUESTION #5661
Question 1
A plaintiff from State A sues a defendant from State B in federal court for $100,000 for breach of contract. The defendant files a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). While the motion is pending, the defendant discovers that the plaintiff failed to join a necessary party under Rule 19. Can the defendant now raise this new defense?
  • No, because the defendant waived the defense by omitting it from the initial Rule 12 motion.
  • Yes, because a motion to dismiss for failure to join a party under Rule 19 is never waived.
  • Yes, because Rule 12(h)(2) allows a party to raise a failure to join a person required by Rule 19(b) in any pleading allowed under Rule 7(a), by a motion under Rule 12(c), or at trial.✔️
  • No, unless the court grants the defendant leave to amend the pending motion.
Correct Answer Explanation
Under Rule 12(h)(2), certain defenses, including failure to join a person required by Rule 19(b), are preserved and can be raised in any pleading allowed under Rule 7(a), by a motion under Rule 12(c), or at trial, even if omitted from an earlier Rule 12(b) motion.