UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THE TAUBMAN COMPANY LIMITED
PARTNERSHIP, a Delaware limited partnership,
Plaintiff,
v. WEBFEATS, a Texas company, and
HENRY MISHKOFF, an individual,
Defendants.
Case No. 01-72987
Hon. Lawrence P. Zatkoff
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS'
EXPITED MOTION TO DISMISS
COMPLAINT
BASED ON IMPROPER SERVICE
Defendants' motion is grounded on their claim that the complaint was not properly served.
Before addressing the merits of this defense, Plaintiff states that this motion is barred and waived,
pursuant to the collective provisions of Rule 12(b), 12(g), and 12(h) of the Federal Rules of Civil
Procedure.
Rule 12(b) of the Federal Rules of Civil Procedure provides, in pertinent part:
Every defense, in law or fact, to a claim for relief in any
pleading... shall be asserted in the responsive pleading thereto if
one is required... (emphasis added).
Rule 12(g) provides, in pertinent part:
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).
Rule 12(h) provides, in pertinent part:
(1) A defense of... insufficiency of service of process is waived (A)
if omitted from a motion in the circumstances described in
subdivision (g), or (B) if it is neither made by motion under this rule
nor included in a responsive pleading...
(A) These Rules Collectively Provide that the Defense is Barred and/or Waived
A review of the answer filed in this case, dated October 22, 2001, establishes that no
objection to service of process was set forth in the answer. A further review of the facts
establishes that Defendants then filed two successive motions under Rule 12, the first seeking
dismissal on the basis of venue, the second seeking dismissal on the basis of lack of personal
jurisdiction. Neither of these motions made any reference to the claimed insufficiency of service
of process. Based on Defendants' failure to make a timely objection as required by these Rules,
the express provisions of Rule 12(h) establish that the defense is waived.
Moreover, the requirement of Rule 12(g), that all such defenses be consolidated into a
single motion, if such a motion is brought, is directly violated by Defendants' serialized motions,
numbering three thus far, and requires the Court to hold the instant motion barred. As stated in
Moore's, "When read together, the consolidation and waiver provisions make clear that to avoid
waiving most Rule 12 defenses or objections, a party must raise them in one initial motion, or, if
none is filed, in the first responsive pleading." 2 Moore's Federal Practice 3d, §12.20-12.21
(1997); Central Security National Bank of Lorain County v. Royal Homes, Inc., 371 F.Supp. 476
(E.D. Mich. 1974) (having failed to assert the defense of insufficiency of process in the answer, it
is waived under Rule 12(h); Armstrong v. Sears, 33 F.3d 182, 188 (2d Cir. 1994) (the defense of
insufficiency of service of process is waived if omitted from initial Rule 12 motion); Sanderford v.
Prudential Ins. Co., 902 F.2d 897 (11th Cir. 1990) (rules provide for mandatory waiver of defense
of insufficiency of process if not included in defense motion or responsive pleading); 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").
In INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc., 815 F.2d 391, 403 (6th
Cir. 1987), an appeal from the Eastern District of Michigan to the Sixth Circuit, the lower court's
ruling was affirmed, providing for sanctions against the defendant for having brought the untimely
motion based on insufficiency of service of process. The Sixth Circuit stated that "because even a
cursory review of Rule 12 would have revealed that the defense lacked any foundation in law,
[defendant] was properly sanctioned for the motion to dismiss for insufficiency of service of
process."
Defendant's motion is clearly barred and waived.
(B) Defendant's Conduct Waives the Defense
Finally, and perhaps most significantly, Defendants agreed by telephone to accept service
of the complaint. See Ex. A. Defendants now argue that the decision was made without sufficient
understanding of their rights, or the consequences of the agreement. This is irrelevant.
Defendants had ample opportunity to merely deny the request to accept service and Plaintiff would
have taken steps to effect formal service. At this late date, the objection to service is
inappropriate. Plaintiff relied on this agreement, and should not be prejudiced as a result of
Defendants' late change of heart. Indeed, in Trustees of Cent. Laborers' Welfare Fund v. Lowery,
942 F.2d 731 (7th Cir. 1991), the court held the defendant had waived the objection by leading
plaintiff to believe service was adequate. In this case, Defendants' extensive participation in the
case, listed here, belies any objection to the service: Defendants' agreement to accept service, the
filing of a brief opposing the preliminary injunction request, the filing of an answer, the earlier
filing of two Rule 12 motions to dismiss, and the attendance, by telephone, at the scheduling
conference. This involvement creates a bar and a waiver of the defense of improper service, and a
reasonable belief on Plaintiff's part that service was adequate.
For all the foregoing reasons, Plaintiff respectfully submits that the instant motion be
dismissed, and that, like the plaintiff in the Sixth Circuit case of INVST Financial Group, supra, it
be awarded sanctions for having pursued a motion with no foundation in law.
Respectfully submitted,
Julie A. Greenberg (P-38299)
GIFFORD, KRASS, GROH, SPRINKLE,
ANDERSON & CITKOWSKI, P.C.
280 N. Old Woodward Ave., Suite 400
Birmingham, Michigan 48009-5394
248/647-6000
Attorneys for Plaintiff
Date: 11-29-01
