*1 222 of counsel.
ily equate
ineffective assistance
suffered totality, its defense Viewed detailed, extensively investigat-
cogent, and called nine witnesses on counsel
ed. Defense presented and an alibi of his client
behalf Cheryl testimony of counsel extensive- Morgan. Defense
Granvil
ly the State’s witnesses to cross-examined investigation and to gaps police
show
thereby Defense suggest reasonable doubt. extensively cross-examined
counsel Rush, witness, ques- Alice
State’s main contradictions the inconsistencies and
tioned Defense counsel
in her various statements. investigation Gaming of the Isleta
used pickup imply reasonable
Palace doubt. as whole demonstrates
The record fair trial. received a
Defendant also seeks re The Defendant The doc on cumulative error.
versal based strictly applied. error
trine of cumulative apply to circumstances.
It does not these Martin, 101 N.M.
See State v. (1984). The cumu doctrine of
P.2d irregular error cannot be invoked no
lative reasons, we affirm occurred. For these
ities conviction.
Defendant’s IT IS SO ORDERED. FRANCHINI,
MINZNER, C.J., BACA, JJ., SERNA, concur. *2 Tucker, Firm, P.C.,
Steven L. Tucker Law Fe, Appellant. Santa Lorenz, Miller, Alice Ranne B. Tomlinson Miller, P.A., Torgerson, Stratvert & Albu- Dekleva, Madison, querque, Michael J. Har- bour, Brennan, P.A., Albuquerque, &Mroz Appellees. OPINION BUSTAMANTE, Judge. aptly This case illustrates observa- procedural
tion produce miscues can quite consequences. substantive The district malprac- dismissed Plaintiffs medical against treating physicians tice action because “Plaintiff failed to exercise reason- diligence able serving the De- appeals fendant dis- Doctors.” 012(G) missal, arguing that under Rules 1— NMRA right challenge sufficiency of service them did raise the issue their first answer or 1-012(B). their first motion filed entity as manu- complaint a new named did not mention Acknowledging facturer/designer plate in their initial and added an- with service problems (fraud ap- offer number of pleadings, Defendants and lack of in- cause action other affirmance, including: consent) proaches to The Defendants. formed *3 1- premised solely on Rule was not by Plaintiff to serve reveals no effort record 012(B)(5), in- but rather addressed broader original prior complaint with the Defendants court; powers their failure herent of filing Upon filing complaint. the amended to of Rule to meet the strict letter sought Plaintiff to complaint, the amended initially were should be excused issued, apparently but have new summonses had been named in not aware that difficulty the district ran into some with (3) the original complaint; trial court’s'Order doing clerk’s office so. New summons- sanction, a reversible should be viewed as after the district court en- es were issued discretion; and Plaintiff for abuse of April finally Plaintiff an order in tered 1-012(H) objection by rais- her Rule com- with the amended served Defendants Unpersuaded, and ing it too late. we reverse 15,1995. May on plaint remand. time Pursuant to an of {5} extension AND PROCEEDINGS FACTS filed agreed, Plaintiff Defendants which According complaint, to the on June {2} July on 1995. The answer first answer 18, 1991, hip replace- performed Defendants not mention Rule or other- did During surgery on Plaintiff. the sur- ment challenging pro- wise include right gery, Plaintiffs femur broke. Defen- process of of on priety or timeliness service repair the break with dants elected a stat- Defendants. The answer did include plate particular type of metal fracture which affirmative defense. ute of limitations veterinary specialty plate. was used as Approximately surgery, five after the weeks Thereafter, August on Defen- broke, plate requiring the metal additional supporting a motion with authori- dants filed surgery. seeking ties of Counts VII and dismissal 16, 1994, Plaintiff filed a On June failure to complaint of the amended VIII injuries. personal com- complaint for The upon relief could be claim which state plaint multiple asserted causes action granted. Counts VII and VIII asserted Defendants, including negli- against medical warranties un- implied claims for breach of duty, fiduciary and gence, of contract breach provisions of the New Mexico Uniform der and negligent infliction emotional distress accompa- Code. The motion and Commercial complaint warranty also various claims. The nying no mention of brief made products liability claim stated a challenge and not otherwise did “manufaeturer/designer” plate. of the metal propriety or timeliness of service of 16,1994, appli- Plaintiff filed an Also on June on Defendants. the Medical Review Commission cation with (1976). § September to NMSA 41-5-15 Defendants On received notice of the Medical Defendants for Failure to “Motion to Dismiss application within a few Manner,” Review Commission Timely seeking Process in a Serve days, represented were before prejudice action because dismissal Review Commission the same Medical diligence due Plaintiff “failed to exercise represented them in the who district counsel timely defendants within rea- serve these The Review Commis- court action. Medical initiating her period of time after sonable 3,1994, its sion met on November and issued nor accom- Neither the motion lawsuit.” favor unanimous decision in mentions Rule panying memorandum brief day. the next 012(B)(5)specifically, a circumstance arguments Plaintiff relied activity no The record reveals rely now on court. Defendants district complaint district court from the date the appeal ground as a 6,1995, same circumstance January Plaintiff was filed until complaint. The amended affirmance. filed an amended 12, 1995, effecting October Plaintiff filed her and in service on the On summons De- response to the motion to dismiss for failure fendants. process. serve Plaintiff failed argument, Defendants denied argue assert or that the Defendants’ motion knowledge filing May suit until untimely pursuant provisions
was itself particular, 1995. In defense counsel denied 1-012(H)(1). Instead, of Rules any personal knowledge prior suit response factually Plaintiffs was based. Defendants, service on in direct contradiction argued notice of the representations to Plaintiffs counsel’s made original filing complaint ser- pleadings affidavits. coun- Plaintiffs delayed vice was with at least their tacit argued sel that the was undue and approval in order accommodate the Medi- perhaps unavoidable. Plaintiff asserted *4 process. cal Review Commission complaint in she had to file her June 1994 vaguely also asserted that Defendants had because there were some defendants who cooperate failed to in attempts her to ar- qualified providers health were care under range place a convenient time and for effect- Act, Malpractice the Medical NMSA ing service. Defendants took issue with (1976, §§ 41-5-1 to 41-5-29 as amended by Plaintiffs factual assertions memo filed 1997), and some who were not. 25,1995. October Plaintiff noted that the statute limitations Following litigation— a hiatus in the could not tolled as to the defendants {9} who part by appeal by caused in an court Malpractice this on were not covered the Medical an except by complaint. issue unrelated to the matter before us filing Act the of a See However, response § now—Plaintiff filed ah amended id. in 41-5-22. Plaintiff was dilemma, counsel, the untimely according motion to dismiss for service. Again Plaintiff did not complaint mention Rules 1- she could not serve the on those 012(G) Instead, qualified she reas- defendants who were health care providers prior serted she had exercised “reasonable to the decision the Medi- diligence” meaning within the of Rule 1- cal Review Commission. After the Medical 004(F) decision, in any NMRA and that event Review Commission Plaintiff assert- large portion of the had occurred “at ed she could not the com- serve amended counsel,” plaint the behest of defense clerk and because earlier because the court refused difficulty scheduling appointment an April, to issue a new summons until she Defendants to effect service. was ordered to do so. addition, reply argued In their to Plaintiffs amended In Plaintiffs counsel
response, again controverted that Defendants’ motion dismiss was itself concerning untimely Plaintiffs factual in assertions the filed “because it wasn’t raised the delay. particular, original hearing, reason for In At answer.” the end of the orally granted denied that their counsel knowledge had the trial court Defendants’ motion, filing original complaint. finding of the of the De- “Plaintiff has failed diligence fendants also denied that counsel had to show or to demonstrate the concerning required by contact or conversations ser- of Civil Procedure” complaint prejudiced vice of the until after the amended and that “Defendants are inactivity complaint May in failure [sic] served Plaintiffs to make subject of the service that has been the evidentiary an The trial court held hearing.” hearing on December 1996. Defendants presented testimony concerning routine rul- Following the trial court’s bench attorneys practice ing, of their insurer and Plaintiff and Defendants were unable to addition, responding litigation, agree form In Plain- to filed as well as re- on a of order. findings ceipt handling complaint requested tiff amended wished submit law, May which Defen- served on Defendants 1995. Plaintiff fact and conclusions of testimony employee objected. presentment from Prior to presented a former dants attorney permission to concerning hearing, of her difficulties en- Plaintiff moved for file requested findings having the clerk’s issue a a set of of fact and conclu- countered office hearing prior evidentiary Plain- her ment to the appeal this of law. Material to sions requested. 4 and had requested numbers tiff conclusions pointed that Defendants which Plaintiff out hearing parties’ arguments at the The delay in had raise the issue of failed to essentially post-trial were on motions their first original answer and serving ruling In duplicative prior positions. of their two motions to dismiss. motions, post-trial spe- hearing cifically courtesy to presentment emphasized At Defen- Plain- —as objected requested any reviewing find- tribunal” —that it to Plaintiffs tiff and “to dants law, asserting motion to ings always fact and conclusions considered Defendants’ had 1-012(B)(5) for dismiss- and that “[t]his was be based on Rule process,” as al failure to serve Rule 1- order of dismissal under entered its rules findings required 012(B)(5). denying such were not The Plaintiffs order response, procedure. Plaintiffs of civil reiterated that “the Order post-trial motions professed as January 29, counsel confusion 1997 was Dismissal entered dismissal, pointing out that grounds for the entered SCRA 5[sic], was not mentioned and it was considered a Motion then reminded Insufficiency motion itself. Counsel of Service of Pro- Dismiss for not raised cess, trial court that Defendants had are not well and the Plaintiffs Motions *5 original the of in their answer. issue service denied.” taken and should be objection The trial court sustained the to DISCUSSION form of findings and entered Defendants’ 1-012(B) provides pertinent Rule in order. part: order, entry After the dismissal of defense, presented. Every B. in How seeking post-judg- Plaintiff filed two motions fact, any in law or a claim for relief Rule ment relief. One was as counterclaim, claim, pleading, whether trial; NMRA 1999 motion for new the other third-party claim, or shall cross-claim 060(B)(1) to Rule pursuant was filed 1— responsive pleading thereto asserted NMRA The brief Plaintiff filed 1999. required, except following that if one is highlighted support of Rule 1-059 motion her may option pleader of the defenses their Rule 1- Defendants’ failure to include by be made motion: 012(B)(5) objection in their answer or first (1) subject jurisdiction over lack of dismiss, first and asserted two motions matter; 1-012(G) they had under Rule waived (2) jurisdiction person; lack of over the right supporting so. The brief to do (3) venue; improper essentially motion Plaintiffs Rule (4) insufficiency process; of argued had that Defendants’ motion misled (5) respond grounded if it were on insufficiency process; as of of service prosecute pursuant a failure to to Rule 1-041 (6) failure to state a claim which response post- NMRA 1999. In their granted; relief can be motions, Defendants reasserted (7) join a Rule 1- party failure to under 1- to Rule them motion was made 019. 012(B)(5). they pointed out had option of stat- thus allows hear- referred to Rule in the first complaint by ing the listed defenses to ing August 1996. held on the motion on (the by pleading) or mo- responsive answer they not argued waived Defendants also tion. See id. they had filed it soon as defense because Whether defendants choose available; is, it as realized motion, initial re proceed by answer or original complaint realized the subject provisions of Rules sponse is filed in them had been June 1-012(H), provide: which addition, argued that Plaintiff in mo- right raise G. Consolidation of defenses had “waived her waiver herself party under by argu- tion. A who makes motion failing as to make a defense” any may join ciency process it mo- are if this rule other of service of provided preliminary are not included in a tions herein for and then avail- motion required to him. If a able makes motion or, made, 12(g) if no such motion any under this rule but omits therefrom responsive pleading are not included in the objection then defense or available to him right plead- an of or amendment as permits rule this be raised ing. motion, shall thereafter make a he not objection
motion based on the defense or
omitted,
provided in
except
so
a motion as
Thus,
now
de-
is clear that
time
(2)
Subparagraph
Paragraph
H of this
preanswer
fendant makes a
Rule 12 mo-
grounds
rule on
there stated.
tion,
include,
waiver,
penalty
he must
(2)
the defenses set forth
subdivisions
preservation
H.
or
Waiver
certain
12(b).
If
more
one or
defenses.
of these
are
omitted from
jurisdiction
A defense
lack
initial
but
motion
were “then available” to
venue,
person, improper
over the
insuffi-
movant, they
permanently
lost.
ciency
process
insufficiency
of ser-
only is
prevented
Not
defendant
from
vice of
is waived:
making
subject
prelimi-
it the
of a second
(a) if omitted from a motion in the
nary
may
motion but he
even
assert
Paragraph
circumstances
described
G
his answer.
rule;
of this
(Footnotes
omitted.)
1-
Under Rule
(b)
if it is neither made
012(H)(1),
1-
defenses listed
under
in respon-
this rule nor included
012(B)(2), 1-012(B)(3), 1-012(B)(4)
sive
or an amendment thereof
012(B)(5),
are also lost to
defendant
permitted by Rule 1-015 to be made as a
*6
they are not included
an answer filed
matter of course.
1-012(B)
a Rule
before
motion. See Sun-
(2) A
to
a
defense of failure
state
Atlas,
Corp.
dance
v.
Mechanical & Util.
109
claim upon
granted,
which relief can
a
be
690,
1250,
N.M.
789 P.2d
1257
join
defense
to
of failure
a
indis-
(“Certain
(lack
personal jurisdic-
of
defenses
pensable
objec-
an
1-019 and
tion,
venue, insufficiency
improper
of
tion
legal
of failure to
a
to
state
defense
process)
or service of
must
be asserted at
may
any pleading
a claim
be made in
action;
outset of an
otherwise these defenses
1-007,
permitted or ordered under Rule
waived.”);
Drug
Skaggs
are
v.
Stetz
cf.
by
judgment
plead-
on the
Ctrs., Inc.,
465, 470,
114
840
N.M.
P.2d
ings, or at the trial on the merits.
(“The
(Ct.App.1992)
617
defense of lack of
appears by sugges-
Whenever it
personal
jurisdiction
subject
is
to waiver
parties
tions of the
otherwise that
asserted.”).
properly
not
when
jurisdiction
subject
court lacks
Here,
file
Defendants chose to
matter,
the court shall dismiss the ac-
an answer first.
not
The answer did
include
tion.
sufficiency
challenging
pro
defense
of
1-012(G)
Together Rule
and Rule
process.
cess or of service of
Defendants
012(H)(1) require
consolidation
certain
later filed a motion to dismiss two counts of
1-012(B)
party’s
Rule
in a
initial
complaint for
Plaintiffs amended
failure
pleading.
by
As described
5A
Alan
Charles
Again,
state a claim.
not
Defendants did
Miller,
&
Wright Arthur R.
Federal Practice
1-012(B)(5) challenge
include a Rule
in this
(2d ed.1990)
§
and Procedure
unambigu
Applying
motion.
the clear and
Wright
[hereinafter
Miller]:
&
l-012(H)(l)(b),
provisions of
ous
Rule
Defen
12(h)(1),
1-012(B)(5)
they
According to Rule
the defenses
lost
Rule
dants
defense
jurisdiction, improper may
lack
personal
have had as of the time
filed their
venue, insufficiency
process, and
v. One 1978
insuffi-
answer.1 See United States
argue
they sought
do not
Rule
and thus
Defendants
include their
1.
amend this answer "as matter
course” to
arguments
might well re-
Aircraft,
Defendants’
91 F.3d
Piper
Cherokee
present in
(9th Cir.1996);
if these issues were
sonate
us
51 Pieces
United States
case,
Roswell, N.M.,
but we do not believe
are
Property,
17 F.3d
Real
above,
Cir.1994).
us. As detailed
Defendants
(10th
before
trial court over the course of
insisted
Rule
on
Rule
hearings
proceeding
were
three
compel reversal
their face therefore
1-012(B)(5).
position
Rule
Their
here
under
unless Defendants can
order of dismissal
contradictory
directly
to their
stance
apply
why
do not
or should
demonstrate
addition, the
court.
trial
district
turn
here.
not control the outcome
We
acting
it
specifically
noted was
arguments against reversal.
Defendants’
1-012(B)(5).
are,
es-
sence, inviting
apply
“right-for-any-
us to
rationale to affirm.
reason”
Motion Made Un-
Was Defendants’
1-012(B)(5)?
der Rule
sure,
To
on
be
occasion we
on
will affirm the district court
a rationale
state that their mo
by
from the
relied on
different
one
as
not be treated
tion to dismiss should
court,
doing
but
when
so is fair
motion at all. Defendants
Franks, 119
appellant. See State v.
N.M.
generally that motions
dismiss
assert
174, 177,
(Ct.App.1994).
governed by
untimely service are
common
Only rarely
it be .fair to affirm on a
will
law,
law,
procedure, and
and rules of
are
case
not
ground that was
raised
lower
1-012(B).
by
necessarily governed
affirm
are not inclined to consider
court. We
Thus,
they claim that
their motion “was
here,
right-for-any-reason
ing
rationale
governed
properly
the rule
treated
Defendants insisted below that the sole
Home
recognized
Prieto
Education
[v.
ruling
Rule 1-
of the favorable
basis
(H.E.L.P.),
Program
94 N.M.
Livelihood
012(B)(5). Moreover, as we understand De
(Ct.App.1980),] and
We with this contention in the to issue a sanction of dismissal in these cir circumstances of this case. But then Defen- difficulty Defendants, cumstances. The go that, dants too far argue “[t]o *8 however, they is' that never moved for dis say, does, as Plaintiff physicians that the sanction, missal as a and the record does not should have known were named in the support a conclusion that the trial court con original complaint, necessary it say is ruling sidered its a sanction. they should have assumed Plaintiffs counsel law, would have 20, violated the and because At the December hearing, panel application, did file a court, part violated the the trial ruling as of its oral Plaintiff, law apparent purpose.” for no “I thought long stated: have and hard about law, violating any without could Court, have filed a only the issues before the prep- not in timely complaint against Defendants after hearing during aration for the but the course panel proceedings, the see hearing, NMSA Sec- of the and I cannot determine that (indicating tion 41-5-22 statute of limitations there’s alternative sanction that I can application is tolled from time that impose, is filed short of dismissal the case.” of. with the Medical Review “sanction,” Commission until While the court used the word thirty days panel’s after the argument decision is preceding the announcement- served), did, and and focusing, then filed an com- amended as it on' legal the factual and 230 (3) tion; responses might might sup- not Plaintiffs written two
circumstances argu- not insufficiency of ser- the motion did mention her waiver port based on dismissal ments; and Plaintiff first mentioned Rule support the notion vice of not —does 1-012(H) waiver at the December in punishment used that it was sense hearing, received. after evidence had been improper conduct. 1-015(B) position Rule Defendants’ is that however, point, More to the other applied caused can be cure defect not by the trial court indicate was actions de- late assertion their Rule 1— punitive in imposing a sanction sense disagree. fense. We already have noted that the the word. We Defendants’ on Rule 1- reliance ruling post-trial in judge, trial on Plaintiffs 015(B) in in mod- quite this context is novel motions, ruling specifically he was stated jurisprudence. There is little ern Rule 1-012 addition, 1-012(B)(5). to Rule relationship case law on between Defendants asked the trial court 1-015(B) trial-by-consent concept and of Rule attorney’s fees for seek- award as a sanction 1-012(G) provisions the waiver of Rules dismissal, ing reconsideration the order of 1-012(H). cited, have not nor Defendants they were rebuffed. found, a after single have we case decided findings fact of There no 122 the 1966 federal amendment to Rule consideration, supporting any kind even 1-015(B) specifically holds application, of a sanction. We much less applied be can or should to override ground on this evi cannot affirm when the provisions of waiver Rule 1-012. On contested, dence was the trial court entered contrary, we have located cases which hold matter, findings or no conclusions on party right cannot to assert that a lose the appropriate the determination of the sanction 1-012(G) 1-012(H) preclude a that Rules is a matter within discretion of the opposing even when the Franks, court. 119 N.M. at See 1-012(G) party relying on Rules and 1- P.2d at 212. 012(H) raise point failed to trial court. Corp., Leasing Pila v. G.R. & Rental See Argu- (1st
4. Did Plaintiff Lose Her Waiver
Cir.1977); Myers v. Amer-
F.2d
By Raising
(3rd
ment
Too Late?
Ass’n,
716, 721
ican Dental
695 F.2d
Cir.1982).
1-015(B),
Finally, relying on Rule
rely upon
assert
her Rule
The one case
Plaintiff waived
argument
it too
address
because she raised
which does
the issue does so
1-015(B) provides
pertinent
dictum and was decided before the 1966
late.
part
by v. American
“[W]hen
issues not raised
amendments. See Lomartira
Co.,
pleadings
express
implied
F.Supp.
are tried
Ins.
Auto.
(2d
(D.Conn.1965),
...
shall
treated
all re-
spects
helpful
had
It
therefore
been raised
pres
pleadings.”
significant
their Rule
between the
Defendants construct
differences
1-012(H).
015(B),trial-by-consent theory by
pre-1966
remind-
ent rule and
authority
ing
responded
that:
to the The rest of
is more
us
Defendants’
focus,
by addressing
general
dealing
applica
to dismiss
its factual
in its
with the
merits, arguing strenuously
unpled
that there
tion of Rule
defenses and
motions,
part
involving
pretrial
been no undue
service on her
*9
1-012(H). See,
good part
e.g.,
Big
that a
of the
should be
Bernsen v.
and
and
Inc.,
427,
Defendants;
Coop.,
Wash.App.
Plaintiff re- Bend Elec.
attributed
1047,
(1993);
evidentiary
quested
hearing
an
on the mo-
P.2d
v. Romsa
Loftus
12(h)
histoiy
changed
Rule
of the
Rule
see 2
2. The 1966 amendment
Federal
For a discussion
al.,
12(h)
et
Practice
to its current
form. Prior to the 1966
James Wm. Moore
Moore’s Federal
-
amendment,
12(h)
(3d ed.1998).
12App.22
specifically
12App.20
§§
Rule
allowed the
New
15(b)
12(h)
adopted
application
Rule
of Rule
a
Rule
identical
to consideration
Mexico
version of
1953,
posed initially at trial. The 1966
to the federal rule in
See NMSA
12 defenses
12(h).
21-1-1(12) (1969).
portion
§
Amendment deleted this
of Rule
Constr., Inc.,
856,
motion,
(Wyo.
ing
pleading,
discovery,
trial
860-61
and
1996).
actionf,
stages
including]
of the
...
the Rule
12(f) objection
legal
of failure to
a
state
We have
post-amendment
located one
defense.”)3
publish-
Our search revealed no
conceptual
that addresses
ease
some of the
l-012(H)(2)’s
equating
opinions
ed
Rule
“fail-
meshing
1-
difficulties involved
Rules
legal
a
ure to
defense” with Rule
state
012(G)
1-012(H)
1-015(B).
and
and Rule
See
012(F)’s “insufficient
is at
defense” but there
Inc.,
Ozarks,
Apollo
v.
Giotis
800 F.2d
unpublished
adopts
least one
decision that
(7th Cir.1986).
660, 663-64
The court
See EP Operating
view.
Ltd. Partner-
was able to
Giotis
avoid “this difficult issue”
Co.,
93-0257,
ship v. Placid Oil
Civ. A. No.
timely
because
defendant
“failed to
there
(E.D.La.
Sept.
*2
1994 WL
at
15(b)”
applicability
ap-
raise
of Rule
(minute
1994)
entry) (quoting Wright
5A
&
peal and thus had waived
of the
its waiver
728).
§
Advisory
Miller
at
And the
argument.
Id.
The brief
waiver
at 664.
responsible
amending
federal
Committee
paid
attention
to the issue in
is indica-
Giotis
12(f)
12(h)
and
in 1966 indicated its
potential difficulty
tive of
area.
intent
the rules be
construed
Fortunately,
need not de
we
way:
cide this difficult issue here
Plaintiff
It is to
noted that while the defenses
raised her Rules
(h)(1)
specified
subject
in subdivision
arguments
waiver
before
that made
trial and
provided,
to waiver
there
more sub-
1-012(H)(2).
timely under
Rule
defenses of
a claim
stantial
failure to state
1-012(H)(2) preserves
the de-
upon
granted,
relief can be
which
failure to
upon
of “failure to
a
fenses
state
claim
join
party indispensable
a
(Rule
012(B)(6)),
granted”
can be
relief
1—
legal
to state a
and failure
defense to a
(Rules
join
indispensable party
failure to
an
(see
12(b)(6), (7), (f))
claim
... are
1999),
and 1-019 NMRA
expressly preserved against
waiver
claim,”
legal
to state a
“failure
defense to a
(h)(2)
(3).
amended subdivision
at
least
on the merits. Of the
C,
12A Wright
App.
& Miller
at 221
three, clearly only the
third —“failure
state
12(h)
(quoting
advisory
FedR.Civ.P.
commit-
legal
a
defense to a
claim”—is relevant
note)
added).
(emphasis
tee’s
question of whether Plaintiff
her waiver
lost
argument.
meaning
We must
determine
Taking
Advisory
Commit
legal
of the defense of “failure to
state
value,
at
tee’s note
face
we
decide
must
and whether
defense”
this whether, by raising the
insuffi
defense of
defense here.
ciency
process
of service of
after
1-
subsequent
filed their answer and
Despite
language
the fact that
012(B)(6) motion,
“failfed]
Defendant’s
identical,
rules is
the two
Professors
claim,”
legal
state a
defense to
[Plaintiffs]
Wright and Miller
the failure to
characterize
defense,”
raised an “insufficient
such
legal
synonymous
state
defense as
with an
pursu
Plaintiff had
defense to the defense
may
defense” that
be stricken
“insufficient
1-012(F).
ant to Rule
“What constitutes
motion
to Rule
See
(“The
course,
depends,
an insufficient defense
Wright
§
5A
& Miller
at 728
ban
upon
question.”
5A
...
against
pre-answer
successive
motions ex-
§
Wright Miller
at 661. An insuffi
to the three ‘substantial
list-
&
tends
defenses’
12(h)(2)
may, however,
[including]
“procedur
...
cient defense
be a
ed in Rule
failure to
(Rule
],”
661-63,
12(f)).”),
legal
ally
id.
such
defense[
state
defense to a claim
defective
at
(“Rule
12(h)(2) expressly
insufficiency
§
to raise
service
as the failure
Oppel
preserves
three
waiver dur-
manner.
See
012(F)provides:
pleading
days
upon him or
3. Rule
after service of .the
time,
any
court’s own initiative at
Upon
made
Motion to strike.
or,
may
any pleading
order
responding
stricken from
before
if no
to a
redundant,
rules,
responsive pleading
permitted by
defense or
im-
*10
these
insufficient
is
material,
thirty
impertinent
upon
by party
motion made
a
or scandalous matter.
within
dismiss,
Co.,
Rule 1-012
to
92 F.R.D.
497 filed another
motion
Empire Mut. Ins.
(S.D.N.Y.1981).
too late
Rules
the motion was filed
under
012(G)
1-012(H).
it
We
believe
that Defendants failed
We hold
{42}
judg-
to
the
inappropriate
would be
affirm
failing
legal
by
raise
to state a
defense
ground
ment
a
other than the
below on
insufficiency
of
in accor
service
ground urged by Defendants
procedures
with the
dance
Finally,
did not
the district court.
Plaintiff
alerting
By
the trial court
Thus,
argument.
it was im-
lose her waiver
before a trial on the
to Defendants’ failure
proper
trial court
We
for the
to dismiss.
merits,
validly
her
Plaintiff
asserted
defense
with instruc-
therefore reverse
remand
defense.”
to Defendants’ “insufficient
Stated
tions that the trial court reinstate Plaintiffs
otherwise,
argu
she
not waive her waiver
did
suit.
might perhaps
have been
ment.
IT IS SO ORDERED.
timely in
explicit
raising
her
more
more
defense,
Advisory
agree
but we
with the
HARTZ, J., (specially concurring).
objection
Committee
“an
failure
legal
a
to a claim” is a “sub
state
defense
WECHSLER, J., concurs.
such, we
defense.” As
believe it
stantial
HARTZ, J., (specially concurring).
impose
inappropriate for us to
con
would be
rule,
ditions,
upon
not contained
the
Judge
opin-
I join all of
Bustamante’s
raising
defense.
except
ion
it accords to
deference
1-015(B).
Defendants’ reliance on Rule
De-
holding
is
Our
here
consistent
is
problem
fendants’
here
the untimeliness
recently
Robinson-Vargo
what we
held in
1-015(B)
does
motion to dismiss. Rule
been filed.
would, as if the treat the matter
raising at the time that the issue was filed But
the issue was tried consent. cf. (relation amendments). 1-015(C) I back put party could
do not see how position than it have in if
a better would been explicitly permitted
the court had pleading raising time
to file issue litigated
that the issue was consent of the short,
parties. I cannot see how Rule
015(B) cure a could ever be used to waiver Indeed, very l-012(H)(l)(b)
language of Rule indicates
that Rule 1-015 can cure such a waiver permits
to the extent that it an amendment course,” pleadings “as a matter of 1-015(A). subject
which is the of Rule
NEW MEXICO REGULATION & DEPARTMENT,
CENSING Administra- Div., Appellant/Cross-Ap-
tive Services
pellee, LUJAN, Appellee/Cross-Appellant.
Bernie 19,318.
No. Appeals
Court of of New Mexico.
March