dissenting. The history of the pleadings in this case is instructive:
• July 2, 1998 Complaint against Allstate
• August 6, 1998 Motion to Dismiss or, Alternatively, Answer by Allstate, denying Gailey’s residence and reserving right to plead further
• June 7, 1999 Amended Complaint against Allstate and new defendant Bianca Sills; Sills added by order of the circuit court.
• June 21, 1999 Separate Answer of Allstate to Amended Complaint which contains motion to dismiss for improper venue
• November 5, 1999 Supplemental Motion to dismiss for improper venue
• March 23, 2000 Order to transfer for improper venue
I believe the venue defense was preserved by Allstate. Allstate made the following assertions in its original answer to the first complaint:
4. That defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations contained within paragraph 1 of the Complaint and therefore denies same.
[This was in response to Gailey’s allegation “[t]hat the plaintiff at all times pertinent to this cause of action was a resident and citizen of Phillips County, Arkansas.”]
16. Reserves the right to affirmatively plead any and all other defenses which may be applicable per Rule 8(c) of the Arkansas Rules of Civil Procedure.
17. Reserves the right to file such additional or amended pleadings as may be required upon further investigation of the facts underlying this cause.
Our Rules of Civil Procedure clearly provide that a venue defense is waived if not “included in the original responsive pleading.” Ark. R. Civ. P. 12(h)(1). Despite this language, this court had this to say regarding waiver of an insufficiency-of-service-of-process defense which is also subject to waiver together with venue under Rule 12(h)(1):
In this case, although service of process was admittedly never made upon appellee, the appellee filed an answer specifically reserving his objections to the jurisdiction of the person and the insufficiency of service of process. Then, after the time for service of process had expired, he elected to file a motion to dismiss based on these grounds pursuant to Rule 12(b). We hold that appellee properly asserted these defenses and clearly preserved them under Rule 12(h) by including them in his original responsive pleading and by further filing a motion to dismiss once the time for service of process had expired. As such, we affirm the trial court’s dismissal.
Wallace v. Hale, 341 Ark. 898, 900, 20 S.W.3d 392, 394 (2000). Thus, we have carved out an exception to strict construction of Rule 12(h)(1), where a specific reservation of rights to plead further is made.
In the case at hand, Allstate not only reserved the right to plead further but specifically objected to Gailey’s residence which is the basis for venue. I can see no practical difference between what was done in Wallace and what Allstate did in the instant case.
An analogous federal case makes the same point in interpreting Federal Civil Procedure Rule 12(h)(1) by saying that a party should only be “deemed to have waived objections or defenses which were . . . known to be available.” Glater v. Eli Lilly & Co., 712 F.2d 735, 739 (1st Cir. 1983) (quoting Holzsager v. Valley Hosp., 646 F.2d 792, 796 (2d Cir. 1981)).1 The First Circuit concluded that the defendant, Lilly, did not waive the Rule 12(h)(1) defense of lack of personal jurisdiction due to the plaintiff s residency. That court said:
... In the case before us the defense was not originally available to Lilly because Glater’s complaint did not put it on notice that her New Hampshire domicile was at least questionable. It could not waive a defense involving facts of which it was not, and could not have been expected to have been, aware. See C. Wright & A. Miller, supra, § 1391, at 853-54 (“Rule 12(h) does not provide for waiver if the omitted defense was unavailable when the party answered, as might be the case if the complaint does not give defendant sufficient notice that plaintiff is making a certain type of claim.”)[.] . . .
Id. at 738-39.
This is precisely the argument made by Allstate. It contested Gailey’s residence and reserved the right to plead further, because at that point it did not know Gailey’s precise residence at the time of the accident. The principle espoused in the Glater and Holzsager cases should control this matter. In short, because Allstate reserved the right to assert a venue defense in its answer to the first complaint, I would affirm the transfer of venue by the circuit court.
Though Federal Civil Procedure Rule 12(h)(1) did not refer to “original” response, the First Circuit interpreted the rule to require raising those defenses in the original response.