United States District Court, N.D. Mississippi, Aberdeen Division
HAAS OUTDOORS, INC. PLAINTIFF
DRYSHOD INTERNATIONAL, LLC and JAMES K. DONOHUE DEFENDANTS
Haas Outdoors alleges that Defendants Dryshod International
LLC and James Donahue began negotiations to secure a license
to produce apparel using Haas Outdoors' Mossy Oak
Break-Up camouflage pattern, but then proceeded to create
their own pattern and trademark that violates Haas
Outdoors' intellectual property rights. Since Haas
Outdoors filed its complaint in this case, the parties have
filed a barrage of motions, both procedural and substantive.
began by filing three separate motions to dismiss: one for
lack of personal jurisdiction , one for improper venue
, and one for failure to state a claim . Defendants
also filed a motion to transfer venue to the United States
District Court for the Western District of Texas .
response, Haas Outdoors filed a motion to strike 
Defendants' motions to dismiss and motion to
transfer. In response to the motion to strike,
Defendants moved for leave to filed a combined motion to
dismiss for lack personal jurisdiction and improper venue
opinion and accompanying order, the Court will take up the
procedural motions: Haas Outdoors' motion to strike
Defendants' motions to dismiss and transfer venue and
Defendants' motion for leave to file a combined motion
for lack of personal jurisdiction and improper venue. For the
reasons set forth below, the Court finds that: (1) Defendants
should have combined their jurisdiction and venue motions;
(2) any error arising from Defendants' failure to combine
the motions was harmless; and (3) Defendants were not
required to combine their motion to dismiss for failure to
state a claim with the other motions.
of filing an answer in this case, Defendants filed four
motions on the same day: a motion to dismiss for lack of
personal jurisdiction, a motion to dismiss for improper
venue, a motion to dismiss for failure to state a claim, and
a motion to transfer venue. Haas Outdoors argues that these
motions should be stricken.
Outdoors' argument rests on several points. First, it
argues that Rule 12 prevents the filing of successive motions
of the type Defendants have made here. Second, because
Defendants' defense of improper venue was not included in
the first filed motion to dismiss (which was the motion to
dismiss for lack of personal jurisdiction), it argues that
defense is waived. Haas Outdoors further argues that
Defendants' motion to transfer venue should have been
combined with their motion to dismiss for improper venue
because transfer is preferable to dismissal when venue is
improper. Finally, Haas Outdoors contends that the filing of
multiple motions violates the spirit of Uniform Local Civil
Rule 7(b)(5), which provides a movant with a combined total
of 35 pages for initial and rebuttal briefs, by giving
Defendants additional pages they would not normally have to
make each argument. As a remedy, Haas Outdoors asks this
Court to strike all four motions and order Defendants to file
a combined brief containing all of their defenses, excepting
the defense of improper venue, which they say has been
response, Defendants first argue that by filing all the
motions on the same day, they have complied with the intent
of Rule 12, and so the motions should not be stricken nor
should the improper venue defense be considered waived.
Second, they argue that the motion to dismiss for failure to
state a claim is not prohibited by Rule 12's bar on
successive motions. Finally, they argue that the motion to
transfer venue is not brought pursuant to Rule 12 at all, and
so it is not required to be brought alongside a Rule 12
motion to dismiss for improper venue. Besides asking this
Court to deny Haas Outdoors's motion to strike,
Defendants, alternatively, ask this Court to allow them to
file a combined motion to dismiss for lack of jurisdiction
and improper venue.
12(g)(2) of the Federal Rules of Civil Procedure states, in
relevant part, that "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.
12(g)(2). Thus, generally, a party may make only a single
Rule 12 motion. Rule 12(h)(1) goes on to say that "[a]
party waives any defense listed in Rule 12(b)(2)-(5)
[including improper venue] by omitting it from a motion in
the circumstances described in Rule 12(g)(2)."
Id. 12(h)(1). The Fifth Circuit has held that when
"a party seeks dismissal in a pretrial motion based on
any of the defenses set out in Rule 12(b), he must include in
such motion any other defense or objection then available
which Rule 12 permits to be raised by motion. If the party
omits such defense or objection, Rule 12(g) precludes him
from making a further motion seeking dismissal based on the
omitted defense or objection." Albany Ins. Co. v.
Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir.
1993). Therefore, a party must "exercise great diligence
in challenging personal jurisdiction, venue, or service of
process" to ensure they do not unintentionally waive any
defenses. Wright et al., 5C Fed. Prac. & Proc. §
1384 (3d ed.).
matter, Defendants first filed a motion to dismiss for lack
of personal jurisdiction under Rule 12(b)(2). They then filed
a subsequent motion to dismiss for improper venue under
12(b)(3). By a strict reading of the rules, this second
motion was not allowed.
argue that they have complied with Rule 12 by submitting
their motions on the same day. Defendants cite two cases from
district courts in other circuits where the courts chose to
disregard the fact that the defendants had filed multiple
motions to dismiss on the same day. In the first case,
Premier Funding Grp. LLC v. Aviva Life & Annuity
Co., the defendant made a motion to dismiss for lack of
personal jurisdiction and a motion to dismiss for failure to
state a claim in separate motions on the same day. No.
CV-14-01633-PHX, 2014 WL 6885732, at *2 n.3 (D. Ariz. Dec. 8,
2014). The District Court decided that because "the two
motions were submitted the same day," it would treat
them as one motion and consider the defendant's personal
jurisdiction defense to not be waived. Id. In the
second case, Orange Peach Line, Inc. v. Country
Explosion, LLC, a defendant made a 12(b)(7) motion to
join and that same day filed a motion to dismiss for personal
jurisdiction. No. 3:14-CV-1608, 2015 WL 222311, at *7 (M.D.
Tenn. Jan. 14, 2015) There, the District Court stated that
"although the rules require that [the defendant] should
have joined the two motions, the court regards the error as a
harmless one." Id.
cases the Court has reviewed from within the Fifth Circuit
provide no guidance in considering the applicability of the
cases the presented by Defendants. In each of those cases,
the successive Rule 12 motions were never made on the same
day as the first Rule 12 motion, as it was here; in some
instances, the subsequent motions were made years later.
See, e.g. Albany, 5 F.3d at 908 (two defendants
filed successive motions nine days apart while another filed
successive motions five months apart); Entergy, 2007
WL 2973998 at * 1 (motions filed eight years apart);
Realtime Data LLC v. Carbonite, Inc., No.
6:17-CV-121-RWS, 2017 WL 4693970, at *1 (E.D. Tex. July 11,
2017) (motions filed eight days apart); Diaz v. Estate of
Lampton, No. 3:09-CV-324-CWR, 2013 WL 3213087, at *1
(S.D.Miss. June 26, 2013) (motions filed five years apart).
Thus, none of these cases speak to Defendants' argument
that by filing these motions on the same day Defendants are
in keeping with a key purpose of the rules-avoiding piecemeal
Outdoors' also contends that Defendants' 12(b)(6)
motion and motion to transfer should be stricken
and refiled in combination with the other motions to dismiss,
arguing that Defendants filed the motions separately to
circumvent this Court's page limits on motion briefs.
See L.U. Civ. R. 7(b)(5). Defendants argue that
because the motions all address separate, distinct issues,
they were not required to bring them as one motion.
limits are 'circumvented when a party distributes its
separate but related contentions and legal challenges over
several dispositive motions, each of which is accompanied by
a brief that approaches the ... page limit.'"
Thomas v. Firerock Prod., LLC, No.
3:13-CV-00109-DMB-, 2014 WL 12541627, at *1 (N.D. Miss. Oct.
14, 2014) (quoting Welter Bearing Co. v. PHD, Inc.,
No. 06-13345, 2007 WL 1647878, at *1 (E.D. Mich. June 4,
2007)). When a party circumvents the page limits by filing
multiple motions, "the proper course is to strike the
motions and direct the filing of a single consolidated motion
and brief in support, combining all. . . arguments in a
single filing." Id. This is because a single
filing, even if slightly over the page limit "is vastly