Which documents count as the first responsive document for 12(h)(1) waivers?

Which documents count as the first responsive document for 12(h)(1) waivers?

• A. The Motion or Answer, including rapid amendment of that Answer
• B. The Answer only
• C. The Motion only
• D. The Notice of appearance

Answer: (A)

The key idea is that 12(h)(1) waivers apply to defenses listed in Rule 12(b) if they aren’t raised in the defendant’s first responsive document. That first responsive document can be either a Rule 12 motion to dismiss (or other Rule 12 motion) or the defendant’s Answer. If a defendant immediately amends the Answer, that rapid amendment is still part of the initial responsive pleading event and does not reopen the waiver window. So the documents that count as the first responsive document for waivers are the Motion or the Answer, including rapid amendment of the Answer. The other options miss part of the rule: a Rule 12 motion to dismiss can start the waiver window, or the Answer can if there’s no motion; a Notice of appearance doesn’t raise defenses and isn’t the responsive document that triggers or preserves waivers.

The key idea is that 12(h)(1) waivers apply to defenses listed in Rule 12(b) if they aren’t raised in the defendant’s first responsive document. That first responsive document can be either a Rule 12 motion to dismiss (or other Rule 12 motion) or the defendant’s Answer. If a defendant immediately amends the Answer, that rapid amendment is still part of the initial responsive pleading event and does not reopen the waiver window. So the documents that count as the first responsive document for waivers are the Motion or the Answer, including rapid amendment of the Answer.

The other options miss part of the rule: a Rule 12 motion to dismiss can start the waiver window, or the Answer can if there’s no motion; a Notice of appearance doesn’t raise defenses and isn’t the responsive document that triggers or preserves waivers.