Simply put, a party waives a defense listed in Rule 12(b)(2)–(5) if it makes an earlier Rule 12 motion without raising that defense. See Nichols v. Vilsack, 183 F. Supp. 3d 39, 41–42 (D.D.C. 2016) ; 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1391 (3d ed. 2020) ("[A]ny time a defendant makes a pre-answer Rule 12 motion, he or she must include — on penalty of waiver — the defenses set forth in subdivisions (2) through (5) of Rule 12(b). If one or more of these defenses are omitted from the initial motion but were available to the movant at that time, they are permanently lost.").
See Fed. R. Civ. P. 12(h) (defense of failure to state a claim is not included among defenses waived by omission from a Rule 12 motion; defense may be raised at trial); 5C Wright & Miller § 1392 (omission does not result in complete waiver, party still may raise defense via other mechanisms). Relator has cited no authority supporting a complete waiver in these circumstances.Nichols v. Vilsack, 183 F.Supp.3d 39 (D.D.C. 2016), is not apposite, as it involved a defense (lack of venue) specifically included in Rule 12(h)'s waiver provision. See Id. at 41.
Saint-Gobain provides no support for this assertion in its brief, as the cases it cites stand for only the proposition that a failure to assert a waivable personal jurisdiction defense in any form in a party's first responsive briefing waives a party's ability to assert such a defense later. See Pl.'s Opp'n at 11 (citing Placide Ayissi-Etoh v. Fannie Mae, 49 F. Supp. 3d 9, 12 (D.D.C. 2014) (deeming defense waived where "Defendants waited years to raise" the improper service defense in any capacity); Nichols v. Vilsack, 183 F. Supp. 3d 39, 41 (D.D.C. 2016) (describing general failure to raise defense despite its "availab[ility] when it filed its motion to dismiss Plaintiff's original complaint")). 2. Law of the Case Doctrine
Generally, the filing of an amended complaint "will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading." Nichols v. Vilsack, 183 F. Supp. 3d 39, 41-42 (D.D.C. 2016); see also Lederman v. United States, 131 F. Supp. 2d 46, 58 (D.D.C. 2001) ("A defense available at the time of an initial response to a pleading may not be asserted when the initial pleading is amended." (citation omitted)).
Unlike their plead defense of improper venue, inconvenient venue can be raised after an Answer so long as timely. See Schwilm v. Holbrook, 661 F.2d 12, 16 (3d Cir. 1981) (Section 1404(a) does not include a time limitation); see also Nichols v. Vilsack, 183 F. Supp. 3d 39, 42 (D.D.C. 2016); 17-111 Moore's Federal Practice - Civil § 111.12. The two New York entity Defendants have yet to file an Answer.
As support, the relator cites two cases, which held only that the defense of improper venue under Rule 12(b)(3) is waived when not raised in an initial motion to dismiss or other response to a pleading that is subsequently amended. See id. (citing Nichols v. Vilsack , 183 F.Supp.3d 39, 41 (D.D.C. 2016) ; Weber v. Turner , 1981 WL 26999, *3, 1980 U.S. Dist. LEXIS 17002, *7 (D.D.C. Oct. 2, 1980) ). No such waiver rule applies to assertion by defendants of the public disclosure bar.
"Unlike a motion to dismiss for improper venue under Rule 12(b)(3), a motion to transfer venue under [§] 1404(a) is not a ‘defense’ that must be raised by pre-answer motion or in a responsive pleading." Nichols v. Vilsack , 183 F.Supp.3d 39, 42 (D.D.C. 2016) (citing 14D Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3829 (4th ed.) ). This is so because "the purpose of [§ 1404(a) ] is to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.