United States District Court, S.D. Mississippi, Northern Division
STATE OF MISSISSIPPI ex rel. Jim Hood, Attorney General PLAINTIFF
ENTERGY MISSISSIPPI, INC., ET AL., DEFENDANTS
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
Power and Entergy Corporation have moved to dismiss this case
for lack of personal jurisdiction. The motions are fully
briefed and ready for review.
December 2008, the Attorney General of the State of
Mississippi commenced this suit in state court against
Entergy Mississippi, Entergy Services, Entergy Power, and
Entergy Corporation. Later that month the defendants removed
the case here, answered the complaint, and asserted two
2009, the defendants moved for judgment on the pleadings-on
the Attorney General's claims and on their own
counterclaims-under Federal Rule of Civil Procedure 12(c).
They did not advance a personal jurisdiction defense then or
in the various proceedings which followed. Eight years passed
before Entergy Power and Entergy Corporation (“the
movants”) filed the present motion.
Order resolves whether the movants' omission or delay
constitutes a waiver of their personal jurisdiction defense.
The movants contend that their defense is timely because it
was asserted in their answer. The Attorney General argues
that including the defense in the answer was not enough,
given the subsequent Rule 12(c) motion.
12 was drafted by the Advisory Committee to prevent the
dilatory motion practice fostered by common law procedure and
many of the codes under which numerous pretrial motions could
be made, many of them in sequence-a course of conduct that
was pursued often for the sole purpose of delay.”
Wright, 5C Fed. Prac. & Proc. § 1384 (3d ed. April
2017). “Simply stated, the objective of the
consolidation rule is to eliminate unnecessary delay at the
pleading stage. Subdivision (g) contemplates the presentation
of an omnibus pre-answer motion in which the defendant
advances every available Rule 12 defense and objection he may
have that is assertable by motion.” Id.;
see Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994,
997 (1st Cir. 1983).
parts of the Rule are relevant to this case. The first is
Rule 12(g)(2). It reads: “Except as provided in Rule
12(h)(2) or (3), a party that makes a motion under this rule
must not make another motion under this rule raising a
defense or objection that was available to the party but
omitted from its earlier motion.” Fed.R.Civ.P.
other applicable provision is Rule 12(h)(1). It reads:
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described
in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or (ii) include it in
a responsive pleading or in an amendment allowed by Rule