USCA1 Opinion
April 18, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-2127
PETER PAUL MITRANO,
Plaintiff, Appellant,
v.
JERRY'S FORD SALES, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Lynch,
Circuit Judges. ______________
____________________
Peter Paul Mitrano on brief pro se. __________________
Howard B. Myers and Brown, Olson & Wilson, P.C. on brief for _________________ _____________________________
appellee.
____________________
____________________
Per Curiam. We have carefully reviewed the record in __________
this case, including the briefs of the parties. We affirm
the dismissal of plaintiff/appellant's complaint for lack of
personal jurisdiction.
Plaintiff/appellant has failed to show that
defendant/appellee "purposefully availed itself of the
privilege of conducting activities within [New Hampshire].
Hanson v. Denckla, 357 U.S. 235, 253 (1958). Where all ______ _______
negotiations relevant to the purchase of the automobile took
place entirely out of state, see United Electrical Workers v. ___ _________________________
163 Pleasant Street Corp., 960 F.2d 1080, 1090 (1st Cir. ___________________________
1992) (location of negotiations vitally important to
jurisdictional inquiry based on contract), the mere mailing
of papers to New Hampshire is an insufficient contact to
support the exercise of jurisdiction over defendant/appellee.
Appellant contends, however, that defendant/appellee
waived this defense because, although it raised the defense
of lack of personal jurisdiction in its answer, it did not
include that defense in its subsequent motion to dismiss.
Appellant's position is not entirely without support. See ___
Arkwright Mutual Insurance Co. v. Scottsdale Insurance Co., _______________________________ _________________________
874 F. Supp. 601, 603 (S.D.N.Y. 1995) (defense of lack of
personal jurisdiction waived by failure to raise it in first
Rule 12 motion, even though defendant included it in answer);
Committee v. Reimer Co., L.P.A., 150 F.R.D. 495, 498 (D.Vt. _________ __________________
1993) (same). However, we think that a careful reading of
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the relevant language and purpose of Rule 12 indicates that,
in this case, the defense was preserved.
"The purpose of Rule 12 is to eliminate unnecessary
delays in the early pleading stages of a suit so that all
available Rule 12 defenses are advanced before consideration
of the merits." Manchester Knitted Fashions v. Amalgamated, ___________________________ ___________
967 F.2d 688, 691 (1st Cir. 1992) (citing cases). To effect
this purpose, Fed. R. Civ. P. 12(h)(1) provides that certain
defenses, including the lack of personal jurisdiction, are
waived, in one of two circumstances: "(A) if omitted from a
motion in the circumstances described in [Rule 12(g)], or (B)
if it is neither made by motion under this rule nor included
in a responsive pleading . . ." Which of the two parts of
this rule applies depends on the form of defendant's first
defensive move. If defendant's first defensive move is a
preanswer motion, section A requires that the motion contain
all applicable defenses. That 12(h)(1)(A) applies to
preanswer motions is made clear by the 1966 Advisory _________
Committee's notes to Rule 12(h)(1) (Rule provides that
"certain specified defenses, which were available to a party
when he made a preanswer motion but which he omitted from _________________
that motion, are waived") (emphasis added), as well as by
part A's reference to Rule 12(g), see 1966 Advisory Committee ___
notes to Rule 12(g) (Rule precludes "a defendant who makes a
preanswer motion under this rule from making a further motion ________________________________
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presenting any defense or objection which was available to
him at the time he made the first motion and which he could
have included but did not in fact include therein."); Pilgrim _______
Badge & Label Corp. v. Barrios, 857 F.2d 1,3 (1st Cir. 1988) __________________ _______
("'[s]ubdivision (g) contemplates the presentation of an
omnibus preanswer motion in which defendant advances every _________
available Rule 12 defense and objection he may have that is
assertable by motion.") (quoting 5 Wright & Miller, Federal _______
Practice & Procedure: Civil 1384 at 837 (1969))). If, _____________________
however, the first defensive move of defendant is a
responsive pleading, 12(h)(1)(B) requires that the defense of
lack of personal jurisdiction be raised in that pleading.
Taken together, Rule 12(h)(1)(A) & (B) require "that
defendants wishing to raise [a defense of lack of personal
jurisdiction] must do so in their first defensive move, be it ________________________________________
a Rule 12 motion or a responsive pleading." Glater v. Eli ______ ___
Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983); see also ___________ ___ ____
Roque v. United States, 857 F.2d 20, 21 (1st Cir. 1988) _____ _____________
(Under Rule 12(h)(1), "defense of [personal jurisdiction] is
waived if not raised in the answer (or in a motion filed
prior to or contemporaneously with the answer).") (emphasis _____
in original).
In the instant case, defendant/appellee raised the
defense of lack of personal jurisdiction in its answer to the
complaint. Since this was defendant/appellee's first
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defensive move, the waiver provisions of Rule 12(h)(1) do not
apply. Nor did defendant/appellee waive that defense by
failing to raise lack of personal jurisdiction in its
subsequent postanswer motion to dismiss, see Bronlow v. Aman, __________ ___ _______ ____
740 F.2d 1476, 1483 n.1 (10th Cir. 1984) (defense of lack of
personal jurisdiction not waived even though not raised in
answer to amended complaint since it had already been raised
in an initial motion to dismiss), especially since
defendant/appellee showed no lack of diligence in pressing
this issue before the district court, cf. Rice v. Nova __ ____ ____
Biomedical Corp., 38 F.3d 909, 914 (7th Cir. 1994) (although _________________
raised in initial pleading, defense of lack of personal
jurisdiction waived when not pressed again until appeal);
Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (same). _______ ____
Affirmed. ________
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