Rule 12(h) of the Federal Rules of Civil Procedure sets forth which defenses are waived if not asserted immediately in federal litigation, and how other defenses that are not waived may be asserted. Specifically, Rule 12(h) mandates that:
(h) Waiving and Preserving Certain Defenses.
- (1) When Some Are Waived. 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 15(a)(1) as a matter of course.
- (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
- (A) in any pleading allowed or ordered under Rule 7(a);
- (B) by a motion under Rule 12(c); or
- (C) at trial.
- (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
In layman's terms, there are three categories of defenses when you are sued civilly in federal court. The first category is those that you must raise at the first opportunity of the pre-trial process. For example, "This suit was filed in the wrong court" or "The crime I'm being sued for does not even exist." The second category includes the vast majority of defenses; these can be raised all the way through the trial. The third category is a defense that can be raised at any time, even after trial at any level of appeal including the Supreme Court of the United States.