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States ex rel. Hood v. Entergy Mississippi, Inc.

United States District Court, S.D. Mississippi, Northern Division

July 11, 2017

STATE OF MISSISSIPPI ex rel. Jim Hood, Attorney General PLAINTIFF
v.
ENTERGY MISSISSIPPI, INC., ET AL., DEFENDANTS

          ORDER

          CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE

         Entergy Power and Entergy Corporation have moved to dismiss this case for lack of personal jurisdiction. The motions are fully briefed and ready for review.

         I. Background

         In 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 counterclaims.

         In May 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.

         This 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.

         II. Law

         “Rule 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).

         Two 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.”[1] Fed.R.Civ.P. 12(g)(2).

         The 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 ...

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