UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE TAUBMAN COMPANY LIMITED
PARTNERSHIP, Plaintiff,
v. WEBFEATS and HENRY MISHKOFF,
Defendants.
Civil Action No. 01-72987
Honorable Lawrence P. Zatkoff
Magistrate Judge Komives
PLAINTIFF'S BRIEF OPPOSING MOTION TO DISMISS
FOR LACK OF PERSONAL JURISDICTION
This motion must be denied as untimely and in violation of the Federal Rules. Defendants
previously filed a motion to change venue in this case, which has been fully briefed, and even
refiled (pursuant to the Court's order that it be brought into compliance with the local rules).
Neither the original motion to change venue, nor the refiled version, made any mention of
personal jurisdiction. Pursuant to the Federal Rules, this successor motion, based as it is on lack
of personal jurisdiction, is prohibited.
Rule 12(g) of the Federal Rules of Civil Procedure provides:
If a party makes a motion under this rule but omits therefrom any
defense or objection then available to the party which this rule
permits to be raised by motion, the party shall not thereafter
make a motion based on the defense so omitted, except a motion
as provided in subdivision h(2) hereof on any of the grounds there
stated. [subsection h(2) refers to the defense of failure to state a
claim]. (Emphasis added).
See, Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907,909 (5th Cir. 1993) ("The meaning
of subdivision (g) is clear. If 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.") See generally, 2 Moore's Federal
Practice 3d §12.21 (1997).
Defendants did not mention the grounds of personal jurisdiction in either venue motion
filed, and are precluded from bringing the instant motion by Rule 12(g).
Throughout these proceedings, Defendants have repeatedly requested forbearance from the
Court with respect to their failure to comply with the Federal Rules. However, the Court has
informed Defendants of the complex nature of these proceedings, and of the advisability of
securing legal counsel. Defendants have elected to forge ahead pro se. They should not be
permitted to continue to benefit by failing to adhere to the requirements of the Federal Rules.
Pursuant to the express provisions of Rule 12(g), this Court should dismiss this motion as
prohibited.
In the event the Court does not deny this motion pursuant to Rule 12(g) as set forth above,
Plaintiff respectfully requests an opportunity to respond further to the merits of Defendants'
defense of lack of personal jurisdiction.
Respectfully submitted,
Julie A. Greenberg (P38299)
GIFFORD, KRASS, GROH, SPRINKLE,
ANDERSON & CITKOWSKI, P.C.
280 N. Old Woodward Ave., Suite 400
Birmingham, Michigan 48009
(248)647-6000
Attorneys for Plaintiff
Dated: 11-27-01
