Yale Univ et al v. Konowaloff

Filing 77

ORDER granting Yale Universitys Motion to Strike Konowaloffs Waived Defense of Lack of Personal Jurisdiction (Doc. No. 36 ). Signed by Judge Alvin W. Thompson on 9/29/2010. (Zeronda, N)

Yale Univ et al v. Konowaloff

Doc. 77

UNITED STATES DISTRICT COURT DI S T R I C T OF CONNECTICUT

-------------------------------x : Y A L E UNIVERSITY : Plaintiff, : : and : : T H E NIGHT CAFÉ, a PAINTING : Plaintiff-in-rem, : : v. : : : P I E R R E KONOWALOFF : Defendant, : : v. : : Y A L E UNIVERSITY : Counter-Defendant, : : and : : T H E NIGHT CAFÉ, a PAINTING : Counter-Defendant-in-rem. : : -------------------------------x

C i v i l No. 3:09CV466(AWT)

R U LI N G ON MOTION TO STRIKE WAIVED DEFENSE OF LACK OF PERSONAL JURISDICTION P l a i n t i f f - C o u n t e r c lai m Defendant Yale University moves under F e d e r a l Rule of Civil Procedure 12(f) to strike DefendantC o u n t e r c l a i m Plaintiff Pierre Konowaloff's defense of personal j u r i s d i c t i o n from his First Amended Answer and Amended Counterclaim. granted. O n May 21, 2009, the defendant filed his Answer and C o u n t e r c l a i m (Doc. No. 9) (the "Answer"). Nearly four months later, For the reasons set forth below, the motion is being

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on September 18, 2009, the Defendant's First Amended Answer and A m e n d e d Counterclaim as a Matter of Course under Fed. R. Civ. P. 1 5 ( a ) ( 1 ) ( A ) (Doc. No. 35) (the "Amended Answer") was filed. The

A m e n d e d Answer contained a "Twelfth Affirmative Defense" that was n o t present in the original Answer: "This Court lacks personal j u r i s d i c t i o n over Mr. Konowaloff." Am. Answer at 16.

T h e plaintiff argues that, by failing to assert the defense of l a c k of personal jurisdiction in a motion to dismiss filed before a n y responsive pleading, in the Answer or in an amended answer f i l e d within 20 days of serving the Answer, the defendant has w a i v e d the defense of lack of personal jurisdiction. o f lack of personal jurisdiction is waivable. The defense

Federal Rule of

C i v i l Procedure 12(h)(1)(B) provides that "A party waives any d e f e n s e listed in Rule 12(b)(2)-(5) [which include, inter alia, l a c k of personal jurisdiction] by . . . failing to either (i) make i t by motion under this rule; or (ii) include it in a responsive p l e a d i n g or in an amendment allowed by Rule 15(a)(1) as a matter of course." Fed. R. Civ. P. 12(h)(1)(B).

T h e defendant does not dispute the plaintiff's contention that h e did not raise the defense of lack of personal jurisdiction in a m o t i o n under Rule 12. The defendant argues, however, that the

A m e n d e d Answer is "an amendment allowed by Rule 15(a)(1) as a m a t t e r of course," and so the defense of lack of personal j u r i s d i c t i o n raised there for the first time is not waived.

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At the time the Answer, the Amended Answer, and Yale's Motion t o Strike were filed in this case,1 the text of Rule 15(a) provided i n relevant part as follows: ( 1 ) Amending as a Matter of Course. A party may a m e n d its pleading once as a matter of course: ( A ) before being served with a responsive p l e a d i n g ; or ( B ) within 20 days after serving the pleading i f a responsive pleading is not allowed and t h e action is not yet on the trial calendar. ( 2 ) Other Amendments. In all other cases, a party m a y amend its pleading only with the opposing p a r t y ' s written consent or with the court's leave. The court should freely give leave when justice so requires. F e d . R. Civ. P. 15(a). T h e plaintiff argues that what is controlling is the fact that t h e Amended Answer is two pleadings in one document: an amended c o u n t e r c l a i m , which requires a responsive pleading, see Fed. R. C i v . P. 12(a)(1)(B), and an amended answer, which does not. By this u n d e r s t a n d i n g , the defendants' counterclaim was properly amended as a matter of course under Rule 15(a)(1)(A) because there had been no r e s p o n s i v e pleading served, but, because the Answer had been served m o r e than 20 days before the new document was filed, see Fed. R.

The amendments to Rule 15(a) that went into effect on D e c e m b e r 1, 2009 do not change the analysis. The amended text of R u l e 15(a) provides that "[a] party may amend its pleading once a s a matter of course within . . . 21 days after serving it, o r . . . if the pleading is one to which a responsive pleading is r e q u i r e d , 21 days after service of a responsive pleading or 21 d a y s after service of a motion under Rule 12(b), (e), or (f), w h i c h e v e r is earlier." Because, as discussed below, no r e s p o n s i v e pleading is required by the Answer, and the Amended A n s w e r was filed more than 21 days after service of the Answer, t h e Amended Answer was not filed as a matter of course under the a m e n d e d Rule 15.

1

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Civ. P. 15(a)(1)(B), amending the answer portion of the document c o u l d only be done with the plaintiff's consent or by leave of the c o u r t pursuant to Rule 15(a)(2). The defendant contends that what

i s controlling is the fact that the Amended Answer is a single d o c u m e n t , and because no responsive pleading had been filed to the c o u n t e r c l a i m portion of the document, the whole document could s t i l l be amended as a matter of course pursuant to Rule 15(a)(1)(A). A n answer is generally among the category of pleadings to w h i c h "a responsive pleading is not allowed." 15(a)(1)(B). Fed. R. Civ. P.

Compare Fed. R. Civ. P. 7(a)(7) ("Only these

p l e a d i n g s are allowed: . . . if the court orders one, a reply to an a n s w e r . " ) (emphasis added), with Fed. R. Civ. P. 7(a)(3) ("an a n s w e r to a counterclaim designated as a counterclaim"). No

r e s p o n s i v e pleading to the answer has been ordered by the court in t h i s case, so none is allowed here. Further, "when the answer does

c o n t a i n a counterclaim denominated as such, the reply . . . is only t o the counterclaim." 20 Charles Alan Wright & Mary Kay Kane, 20 F e d e r a l Practice & Procedure: Federal Practice Deskbook § 70, at 6 1 8 (2002); see also Borgen v. Pa. Greyhound Lines, 9 F.R.D. 208, 2 0 9 (N.D. Ohio 1949) ("Plaintiff's reply was responsive to d e f e n d a n t s ' cross petition but was not responsive to the joint answer."). In addition, Rule 7(a) recognizes "an answer to a

c o m p l a i n t " and "an answer to a counterclaim designated as a c o u n t e r c l a i m " as two separate pleadings. Fed. R. Civ. P. 7(a)(2),

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(3).

As a result, the more appropriate provision to govern whether

o r not the answer portion of the Amended Answer was filed "as a m a t t e r of course" is Rule 15(a)(1)(B), which requires amendments as a matter of course to be filed within 20 days. I n d e e d , the 20-day time limit to amend an answer is especially c l e a r in the context of the issue of waiver of the defense of lack o f personal jurisdiction. As the D.C. Circuit has noted,

The office of Rule 12(h)(1) is to assure that a d e f e n s e of lack of jurisdiction over the person is a s s e r t e d promptly. It provides that the defense is w a i v e d if it is neither made by pre-answer motion n o r included in the answer or an amendment thereto m a d e within twenty days of the answer's service. C h a s e v. Pan-Pacific Broad., Inc., 750 F.2d 131, 134 (D.C. Cir. 1984). The addition of a counterclaim to the scenario does not The defendant had 20 days from the service of

c h a n g e the analysis.

t h e Answer to amend the Answer to include a defense of lack of p e r s o n a l jurisdiction and did not do so. d e f e n d a n t waived this defense. I n addition to the reasons stated above, the defendant's a r g u m e n t that an answer can be amended as a matter of course if a c o u n t e r c l a i m is appended is problematic because it would create the a n o m a l o u s result that parties without a counterclaim would waive t h e i r defenses by failing to amend their answers in 20 days, while p a r t i e s with a counterclaim could freely preserve defenses that t h e y have not pursued for months. F i n a l l y , the court notes that on August 5, 2009, the Rule 2 6 ( f ) Joint Planning Report of the Parties (Doc. No. 28) (the As a result, the

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"26(f) Report") was filed.

That document, signed by counsel for

b o t h parties, explicitly states that "personal jurisdiction is not c o n t e s t e d . " 26(f) Report at 2. Although the plaintiff makes this

p o i n t in support of its motion, the defendant has offered no response. For the reasons stated above, Yale University's Motion to S t r i k e Konowaloff's Waived Defense of Personal Jurisdiction (Doc. N o . 36) is hereby GRANTED. I t is so ordered. S i g n e d this 29th day of September, 2010 at Hartford, Connecticut.

__________/s/AWT____________ A l v i n W. Thompson U n i t e d States District Judge

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