Some states allowed defendant to proceed to defend on the merits while preserving the jurisdictional objection. At that point, defendant might have a choice to make.

When the special appearance was unsuccessful, the case proceeded. When the special appearance was successful, the case was dismissed and defendant went home happy. Consequently, a defendant wishing to challenge personal jurisdiction had to be careful the challenge must have been to personal jurisdiction and nothing else. For example, a defendant made a general appearance by such actions as opposing plaintiff’s motion to amend the complaint, engaging in discovery, challenging the legal sufficiency of the complaint, or possibly even informing the court that it chose not to appear. A defendant could also consent, or waive objection, to personal jurisdiction more subtly. A defendant who challenged jurisdiction and at the same time pleaded to the merits of the complaint obviously called on the power of the court this was a general appearance. A defendant who attempted to present other defenses or motions before the court made a general appearance, and a general appearance amounted to a consent to personal jurisdiction. Defendant appeared in the court for the sole purpose of challenging personal jurisdiction, and no other purpose. This can be seen in some older decisions that refer to defendant having “appeared specially.” In both systems, the defendant could make a special appearance to challenge jurisdiction. The codes provided a demurrer to handle both tasks. The common law provided a plea in abatement to attack jurisdiction and a demurrer to attack the legal sufficiency of a complaint. We discuss the assertion–and possible waiver–of the seven grounds found in Federal Rule 12(b) for dismissal of a complaint. We do not discuss other possible preliminary motions, such as a motion for more definite statement or a motion to strike. We do not explore the requirements of, or drafting, an answer, which is the responsive pleading to the complaint. Consequently, this exercise is narrower than Exercise Three. This exercise explores one type of response to a complaint: a preliminary motion to dismiss under Federal Rule of Civil Procedure 12. RAISING, AND WAIVING, RULE 12 DEFENSESĮxercise Three explored pleading a complaint.

Rule 12 motion to dismiss