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I. OLIVER ENGEBRETSON, INC. v. ARUBA PALM BEACH HO

January 5, 1984

I. OLIVER ENGEBRETSON, INC., Plaintiff, against ARUBA PALM BEACH HOTEL & CASINO, ARUVEN, N.V. and MUZII & ASSOCIATES, INC., Defendants.


The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

The above-captioned case came before this Court upon the motions of defendant Muzil & Associates, Inc. ("Muzil"), to dismiss for want of in personam jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, and for leave to amend its answer to assert same as an affirmative defense. For the reasons stated below, defendant's motions are denied.

 BACKGROUND

 Defendant Muzil was served with the summons and complaint herein on March 17, 1983. Muzil did not make any Rule 12 motions prior to filing its answer to that complaint on June 8, 1983. Muzii's answer did not raise the defense of lack of personal jurisdiction.

 On July 18, 1983, Muzii moved for a protective order, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, seeking to have a deposition noticed to take place in New York held in Florida instead, because of Muzii's limited contact with New York. Plaintiff agreed to conduct the deposition in Florida; therefore, the motion was withdrawn.

 On July 26, 1983, Muzii brought its motion for dismissal pursuant to Rule 12(b)(2), and, on September 2, 1983, Muzii brought its motion to amend its answer. These two motions are the subject of this decision.

 DISCUSSION

 The language of the applicable Federal Rules of Civil Procedure is quite clear. Rule 12(b) provides, in relevant part, as follows:

 Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto . . . except that the following defenses may at the option of the pleader be made by motion: . . . (2) lack of jurisdiction over the person. . . . A motion making any of these defenses shall be made before pleading

 (emphasis added). Rule 12(g) provides, in relevant part, as follows:

 A party who makes a motion under this rule may join with it any other motions herein provided for and then available to him.If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted. . . .

 Finally, Rule 12(h)(1) provides as follows:

 A defense of lack of jurisdiction over the person . . . 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 or an amendment ...


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