                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-2219


JOYCE E. PATTERSON, as Administratix       of   the   Estate   of
Yolanda Evett Patterson Hemphill,

                Plaintiff – Appellant,

           v.

D. WHITLOCK; TERRY SULT; CITY OF GASTONIA; JENNIFER STULTZ;
GASTON COUNTY; ALAN CLONINGER; JAN WINTERS; GASTON COUNTY
EMERGENCY MANAGEMENT SERVICES; WATSON INSURANCE AGENCY,

                Defendants – Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:06-cv-00476-MR-CH)


Argued:   May 11, 2010                    Decided:    August 23, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Dismissed in part, reversed in part, and remanded by unpublished
per curiam opinion.


ARGUED: Pamela Anne Hunter, Charlotte, North Carolina, for
Appellant.   Martha Raymond Thompson, STOTT, HOLLOWELL, PALMER &
WINDHAM, Gastonia, North Carolina, for Appellees.      ON BRIEF:
James C. Windham, Jr., STOTT, HOLLOWELL, PALMER & WINDHAM,
Gastonia, North Carolina; Robert D. McDonnell, LAW OFFICE OF
ROBERT MCDONNELL, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      In August 2006, appellant Joyce E. Patterson filed this

civil action in North Carolina state court on behalf of her

deceased daughter’s estate.          Following removal of the action to

the   Western    District     of   North      Carolina,   the    district        court

dismissed       Patterson’s        thirty-eight-count           complaint         (the

“Complaint”) for insufficient process.                In relevant part, the

court deemed process to be insufficient on the ground that she

had   served     the   defendants        with   incomplete      copies      of     the

Complaint.      As explained below, because the pertinent defendants

waived any      such   challenge    to    the   sufficiency      of   process,      we

reverse in part and remand. 1



                                         I.

                                         A.

      As alleged in the Complaint, Patterson’s daughter — Yolanda

Evett Patterson Hemphill — was shopping at a mall in Gastonia,

North Carolina on August 20, 2004.                 While waiting to meet a


      1
        Of the nineteen defendants named in the Complaint,
Patterson identified nine of them as adverse parties in this
appeal.   We dismiss those aspects of the appeal pertaining to
two of those nine parties — Gaston County Emergency Management
Services and Watson Insurance Agency — because Patterson failed
to include any contentions relevant to them in her opening
brief. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (citing Fed. R. App. P. 28(a)(9)(A)).



                                          3
friend in the mall parking lot, Hemphill was approached and then

pursued     by    security    guards.         One     of    the    guards       grabbed

Hemphill’s hair, forced her to the ground, and shoved his knee

in her face.       Hemphill complained that she was having difficulty

breathing    and    asked     to   be    released.         The     security      guards

refused,     instead    detaining        Hemphill      until      Gastonia       police

officers arrived.       Once on the scene, the officers determined

that Hemphill required medical assistance, and they called for

the Gaston County paramedics.

      Patterson     alleges    that,     because     it    was    near    the   end   of

their shift, the paramedics did not fully attend to Hemphill.

Rather, the police officers transported her to the Gaston County

Jail,   where     Hemphill    continued       to    complain      about    difficulty

breathing.       After her arrival at the jail, Hemphill fell to the

floor and began foaming at the mouth.                      The authorities then

transported Hemphill to Gaston Memorial Hospital, where she was

pronounced dead upon arrival.

                                         B.

      On August 21, 2006, Patterson filed the Complaint on behalf

of   her   daughter’s    estate     in    the      Superior      Court    for    Gaston

County.     The Complaint alleged multiple tort claims arising from

Hemphill’s death, as well as civil rights claims predicated on

the state and federal constitutions and 42 U.S.C. § 1983.                        Named

as defendants were, inter alia, Gaston County; Gaston County

                                          4
Sheriff         Alan    Cloninger,    individually         and     in     his    official

capacity; and County Manager Jan Winters, individually and in

his official capacity (collectively, the “County Defendants”).

Other       defendants     included    the    City    of   Gastonia;       City    police

officer D. Whitlock, individually and in his official capacity;

City       Chief   of    Police    Terry     Sult,    individually         and    in    his

official capacity; and City Mayor Jennifer Stultz, individually

and        in    her    official      capacity       (collectively,         the        “City

Defendants”).           This appeal implicates Patterson’s claims against

these two categories of defendants only:                    the County Defendants

and the City Defendants (collectively, the “Defendants”).

                                             C.

                                             1.

       On November 16, 2006, the County Defendants made a special

appearance in state court and moved to dismiss the Complaint on

the basis of, inter alia, insufficient service of process. 2                            That

same day, the County Defendants — with the other defendants’

consent — timely removed the action to the Western District of

North       Carolina,     asserting     federal      question      and     supplemental

jurisdiction.             The     County     Defendants’         notice    of     removal


       2
       Although Patterson endeavored to serve state court process
in October 2006, it is now undisputed that she did not serve the
Defendants in accordance with North Carolina law while the
action was pending in the state court.



                                             5
contained a complete copy of the Complaint.                 Six days later, on

November 22, 2006, the City Defendants separately removed the

action to federal court, notwithstanding that it had already

been removed. 3    Although the City Defendants made no reference to

an incomplete Complaint, the copy included in their notice of

removal omitted pages 11 through 26.

      On   December    29,   2006,    the    County    Defendants        moved   to

dismiss the Complaint based on, inter alia, insufficient process

and   insufficient     service   of   process.        See    Fed.   R.    Civ.   P.

12(b)(4), (5). 4      In their motion, the County Defendants asserted

that Patterson had failed in her October 2006 attempts to serve

them with state court process.             In support thereof, the County

Defendants relied on several exhibits and affidavits from Gaston

County employees.




      3
       On January 24, 2007, the district court consolidated the
two cases initiated by the separately filed notices of removal
into a single civil action.
      4
       The Federal Rules of Civil Procedure apply to this case.
See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil
action after it is removed from a state court.”). Subsequent to
the district court proceedings, certain rules at issue in this
appeal have been amended, without any substantive effect on the
issues presented herein. Because the Supreme Court has ordered
that the amended rules should apply retroactively, “insofar as
just and practicable,” we apply the most recent version of the
rules (in effect on December 1, 2009).    See Order of Mar. 26,
2009, 556 U.S. __ (U.S. Mar. 26, 2009).



                                       6
       On       February   9,    2007,   Patterson    responded    to   the   County

Defendants’ motion to dismiss, asserting that she was entitled,

after removal, to serve the defendants with process issued by

the district court.             See 28 U.S.C. § 1448. 5     Pursuant to the 120-

day time limit for completion of such service, specified in Rule

4(m)       of    the   Federal      Rules   of     Civil   Procedure,      Patterson

maintained that she had until March 17, 2007 to perfect service.

       Patterson apparently made no further effort to accomplish

service, however, until March 9, 2007, when she first obtained

summonses for the defendants from the district court.                      Then, on

March 15, 2007 — shortly before the 120-day period was to expire

— Patterson moved the court, pursuant to Rule 4(m), to extend

her time to complete service. 6                 Meanwhile, Patterson sought to

serve      the    defendants      with   the     then-recently    issued    district

court process.         Patterson’s counsel arranged for such service of

       5
       In relevant part, 28 U.S.C. § 1448 (entitled “Process
after removal”) provides that, in a removed case

       in which any one or more of the defendants has not
       been served with process or in which the service has
       not been perfected prior to removal, or in which
       process served proves to be defective, such process or
       service may be completed or new process issued in the
       same manner as in cases originally filed in such
       district court.
       6
        In pertinent part, Rule 4(m) provides that “if the
plaintiff shows good cause for the failure [to serve the
defendants with process], the court must extend the time for
service for an appropriate period.”



                                            7
process by two methods:               personal service by process server and

certified mail. 7

     On    March        30,   2007,      the    County    Defendants     responded    to

Patterson’s efforts to complete service of the process issued by

the district court.               More specifically, the County Defendants

filed what they designated as a “Motion to Quash Summonses of

Gaston County, Jan Winters and Alan Cloninger” (the “Motion to

Quash”).         As    authority      for      the   Motion   to    Quash,   the   County

Defendants relied on Federal Rules 4(e) and 4(j), which govern

service     on        individuals        and    local    governments.         In   their

memorandum       in     support     of    the       motion,   the   County   Defendants

advanced only two contentions, which they have since abandoned:

(1) that Patterson should not have been afforded 120 days after

removal to serve process; and (2) that Patterson’s endeavor to

serve     the    County       Defendants        in    their   individual     capacities

failed to comply with the Federal Rules.                      Notably, the Motion to




     7
       The Federal Rules of Civil Procedure do not authorize
service of an original complaint and summons by mail. They do,
however, permit a plaintiff to effect service in accordance with
state law, see Fed. R. Civ. P. 4(e)(1), 4(j)(2)(B), and North
Carolina authorizes service by mailing the summons and complaint
through “registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the
addressee,” N.C. Gen. Stat. § 1A-1, R. 4(j)(1)(c); see also id.
R. 4(j)(5) (service upon county or city by registered or
certified mail). As a result, service on the Defendants by mail
was permissible (and, as is now undisputed, was accomplished).



                                                8
Quash failed to mention the contents of the Complaint — that is,

whether it was complete or incomplete.

      Shortly thereafter, on April 11, 2007, another defendant in

the action filed a Rule 12 motion to dismiss for insufficient

process, contending that the Complaint with which it had been

served omitted pages 11 through 26.                         Although a copy of the

Complaint omitting those pages had been appended to the City

Defendants’      notice     of     removal,          no    defendant        had   previously

raised     the   missing    pages       contention.             On   May     1,     2007,   yet

another defendant moved to dismiss the Complaint under Rule 12

on the same ground, i.e., that the Complaint with which it was

served was missing pages 11 through 26.                           Notwithstanding these

motions,     the    Defendants         did     not       come     forward     with    similar

assertions until several months later.

      On May 14, 2007, Patterson responded, maintaining that she

had properly served each defendant with a complete copy of the

Complaint.       In support thereof, Patterson submitted an affidavit

of   the   process       server    who       had     endeavored       to     make    personal

service    on    the   defendants,       plus        a    separate    affidavit        of   her

attorney.        Thereafter,      on     May       25,    2007,    the     City   Defendants

filed their first response to the Complaint:                          their answer (the

“Answer”).         The    Answer       began       by     raising     several       barebones

affirmative defenses under the heading “First Defense.”                                In its

entirety, that passage states:

                                               9
            [The City Defendants], pursuant to the Federal
       Rules of Civil Procedure assert the defenses as set
       forth in Rule 12(b) (2)(4)(5) & (6) of the Federal
       Rules of Civil Procedure and in particular, the lack
       of    jurisdiction   over  these    defendants,  the
       insufficiency of service of process, and the lack of
       personal jurisdiction over these defendants and the
       failure to state a claim for relief as to these
       defendants.

J.A.       225. 8     The    City    Defendants      did    not    elaborate       on    their

service of process contentions in their Answer, nor did they

submit a supporting memorandum of law.                       As such, the Answer in

no way asserted that the City Defendants had been served with an

incomplete copy of the Complaint.

                                              2.

       The      district         court   conducted    a    hearing      on   the    various

pending       motions       on    November    20,   2007.         At   the   hearing,     the

Defendants          apparently      focused    on    Patterson’s       failure      to   file

certified mail return receipts proving that she had completed

service via that method. 9               The court gave Patterson seven days to

file the proper receipts, and she did so in a timely fashion.

       On November 26, 2007, one day before Patterson filed her

certified mail return receipts, the County Defendants filed what

they styled as an “Alternative Motion to Dismiss,” in which they

       8
       Citations herein to “J.A. __” refer to the Joint Appendix
filed by the parties in this appeal.
       9
       A transcript of the district court’s hearing of November
20, 2007, is not in the record.



                                              10
asserted for the first time that the Complaint served on them

had omitted pages 11 through 26.             In other words, despite having

already     challenged     Patterson’s      endeavor       to   serve      them    with

federal process (through their Motion to Quash of March 2007),

the County Defendants — by way of their Alternative Motion to

Dismiss — made another attack on Patterson’s service attempt.

This second attack on service was filed some eight months after

Patterson sought to serve the defendants in March 2007 (and also

eight months after the County Defendants filed their Motion to

Quash).

      On December 7, 2007, Patterson responded, asserting that

the   County     Defendants’     extraordinary          delay   in    raising       the

missing pages contention constituted a waiver of the contention.

More specifically, Patterson maintained that the waiver arose

from the County Defendants’ failure to raise the missing pages

contention in their Motion to Quash.                    See Patterson v. Brown,

No.   3:06-cv-00476        (W.D.N.C.     Dec.      7,    2007),      ECF    No.    126

(contending      that,     although      “these         Defendants      had       filed

extensi[ve]      Motions   to    Dismiss    [the]       Complaint,”     they      “have

never alleged that [the] Complaint should be dismissed based

upon alleged missing pages”).               Patterson filed two additional

affidavits with the district court, seeking to establish that

she   had   in   fact   served   all   of    the    defendants       with   complete

copies of the Complaint.

                                       11
                                         3.

     By its decision of January 24, 2008, the district court

dismissed the County Defendants from the action.                    See Patterson

v. Brown, No. 3:06-cv-00476 (W.D.N.C. Jan. 24, 2008) (the “First

Memorandum Decision”). 10         As an initial matter, the court ruled

that Patterson had failed to serve the County Defendants with

state court process.          Nonetheless, the court concluded that,

under applicable law, Patterson had 120 days from the removal of

the action to federal court to serve the defendants with process

issued by the district court.             See id. at 13-16.            Turning to

Patterson’s endeavor to serve the County Defendants with federal

process    in    March    2007,    the    district        court    concluded   that

Patterson’s effort was fatally insufficient solely because she

had served the County Defendants with a Complaint that omitted

pages 11 through 26, in contravention of the obligation to serve

a complete copy of the complaint.              See id. at 29.

     The    First     Memorandum   Decision        also   addressed    Patterson’s

assertion that the County Defendants had waived the “missing

pages contention” by not raising it in their Motion to Quash.

The district court acknowledged that, despite having been raised

by two other defendants in April and May 2007, the missing pages

contention      was   first   advanced        by   the    County    Defendants   in

     10
          The First Memorandum Decision is found at J.A. 336-80.



                                         12
November   2007.             Thus,   the    court     “agree[d]      that     the    [County]

Defendants could have, and indeed should have, raised this issue

much earlier in the proceedings.”                     First Memorandum Decision 24.

Nevertheless, the court declined to deem the County Defendants’

contention        untimely,          primarily        because       Patterson       had     not

submitted adequate evidence in April and May to rebut the other

defendants’ assertions that they had been served with partial

copies of the Complaint.                   See id. at 25.            Instead, the court

reasoned that Patterson had not been “prejudiced” by the County

Defendants’       delay,       explaining         that     “while    the    Gaston     County

Defendants        may        have    been      dilatory      in     joining     the       other

[d]efendants in raising the issue, [Patterson] has been equally

dilatory in responding to the issue.”                        Id. at 24-25.          Thus, in

the   “interest         of    fairness      and      judicial      economy,”    the       court

resolved     to     “consider           both    the      Gaston     County     Defendants’

untimely raised alternative argument and [Patterson’s] untimely

evidence in opposition.”                Id. at 25.

      On the merits of the missing pages contention, the district

court   determined            that    Patterson       had    not     served    the    County

Defendants    with           complete    copies       of    the    Complaint.         Without

conducting an evidentiary hearing, the court concluded that the

affidavits submitted by Patterson to prove sufficient service

were “of questionable value.”                   First Memorandum Decision 26; see

also id. at 29 (“[T]he Court finds as fact that these Defendants

                                                13
were not served with a copy of the Complaint that included pages

11     through     26    thereof,       and       that      based       thereon,           the    Court

concludes that the Plaintiff has failed to carry her burden of

showing     that    full       and    complete         copies      of    the       Complaint       were

served upon these Defendants.”).

       Additionally, the district court denied Patterson’s motion

for    an   extension          of    time    to     complete        service.               See    First

Memorandum Decision 33-40.                    In so ruling, the court observed

that     Fourth         Circuit       precedent            requires           a     plaintiff        to

demonstrate        “good   cause”          before      a    court       may       extend    the    time

period for completing service.                     See id. at 34 (citing Mendez v.

Elliot, 45 F.3d 75, 78 (4th Cir. 1995)).                                 Patterson could not

demonstrate        good    cause,          according         to     the       court,        primarily

because she had “not been diligent in her attempts” at service,

even after receiving a “second bite at the apple” in the form of

an additional 120 days after removal within which to serve the

defendants.          Id.       at    37.      The          court    also          emphasized       that

Patterson had not offered any reason for her delay or stated how

much time she would need to complete service.                             Id. at 37-38.

                                                  4.

       On June 5, 2008 — more than four months after the district

court rendered its First Memorandum Decision and over a year

after filing their Answer — the City Defendants moved to dismiss

the    Complaint        (the    “Motion      to     Dismiss”).            In       the     Motion    to

                                                  14
Dismiss, the City Defendants contended for the first time that

Patterson        had   failed     to    serve       them    with       sufficient      process

because she had served incomplete copies of the Complaint.                                  As

discussed        above,       although       the    City        Defendants      listed    the

barebones defense of insufficient process under Rule 12(b)(4) in

their        Answer,   they    had     never    before      specified       their      missing

pages contention.             Thus, it was in the Motion to Dismiss that

the City Defendants first maintained that they were served with

an incomplete Complaint.

        The Motion to Dismiss was submitted to a magistrate judge,

who     recommended       granting       it     based      on    the    district       court’s

resolution        of    the     missing        pages    contention         in    the     First

Memorandum Decision.             After Patterson filed an objection to the

magistrate judge’s recommendation, the district court issued a

second memorandum decision on September 22, 2008, adopting the

magistrate judge’s report and recommendation.                            See Patterson v.

Brown, No. 3:06-cv-00476 (W.D.N.C. Sept. 22, 2008) (the “Second

Memorandum       Decision”). 11         In     short,      the    court    concluded      that

Patterson had not proven that she had served the City Defendants

with complete copies of the Complaint.                           See id. at 7.           As a

result, the court also dismissed the Complaint as to the City

Defendants.

        11
             The Second Memorandum Decision is found at J.A. 408-15.


                                               15
       Thereafter,      Patterson       timely     appealed.       We    possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                         II.

       On appeal, Patterson primarily maintains that the district

court erred in dismissing the Defendants, based on its finding

that    she   had     served    them     with    incomplete     copies   of    the

Complaint.    As detailed below, we conclude that the court erred,

in that the Defendants waived their rights under the Federal

Rules to assert that they had only been served with incomplete

copies of the Complaint.             See Payne ex rel. Estate of Calzada v.

Brake, 439 F.3d 198, 203 (4th Cir. 2006) (observing that we

review district court’s interpretation of applicable rules of

procedure de novo). 12        Accordingly, we reverse and remand.

                                          A.

       We begin with the district court’s dismissal of the County

Defendants.         Because    the    County    Defendants    waived   the    then-


       12
       Although Patterson clearly raised the waiver issue in the
district court, she arguably abandoned it on appeal by failing
to sufficiently explain her contentions in her opening brief.
See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999) (citing Fed. R. App. P. 28(a)(9)(A)). In any event,
we are content to assess the waiver issue, as we are entitled to
exercise our discretion to overlook an abandonment if a
miscarriage of justice would otherwise result.    See A Helping
Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 369 (4th Cir.
2008).



                                          16
available missing pages contention by not raising it in their

Motion to Quash, and because the missing pages contention was

the only service defect identified by the district court as a

basis for dismissing the County Defendants, that dismissal was

erroneous.

     To    recap    the   relevant     procedural    history,      the   County

Defendants, immediately after Patterson endeavored to serve them

with federal process in March 2007, attacked the sufficiency of

Patterson’s service of process by filing the Motion to Quash.

In so doing, the County Defendants challenged service on two

bases,    neither   of    which   implicated   the   completeness        of   the

Complaint.      Then, in the Alternative Motion to Dismiss — filed

eight months after Patterson’s service attempt and the filing of

the Motion to Quash — the County Defendants first advanced the

missing pages contention.

    It     is   beyond     peradventure    that     the   Motion    to    Quash

represented the County Defendants’ attempt at securing a Rule 12

dismissal of the Complaint.          More specifically, it is clear that

what the County Defendants sought in their Motion to Quash was

to have Patterson’s claims dismissed due to insufficient process

— a motion expressly provided for by Rule 12(b)(4).                 Cf. Martin

v. Stokes, 623 F.2d 469, 474 n.8 (6th Cir. 1980) (“[T]here is no

longer a ‘motion to quash’ as defendants filed; technically, the



                                      17
proper      motion        would     have    been     a     motion     to    dismiss           for

insufficiency of service under Rule 12(b)(5) . . . .”). 13

      The County Defendants’ filing of the Motion to Quash, which

was     actually      a     Rule    12     motion    to    dismiss,        has     important

consequences.             Namely,    since     the       Federal    Rules        were     first

adopted in 1938, they have barred a defendant from interposing

successive         motions      raising      certain      Rule     12(b)     defenses          —

including      insufficient         process    under      Rule     12(b)(4)       —     if    the

defense      was     previously       available      to     the     defendant.               More

specifically, Rule 12(g)(2) provides that

      a party that makes a motion under this rule must not
      make another motion under this rule raising a defense
      or objection that was available to the party but
      omitted from its earlier motion.

Fed. R. Civ. P. 12(g)(2).                  Rule 12(h) further provides that a

“party waives any defense listed in Rule 12(b)(2)-(5) by . . .

omitting it from a motion in the circumstances described in Rule

12(g)(2).”         Fed. R. Civ. P. 12(h)(1)(A).                     Significantly, our

Judge      Phillips       has   explained     that   Rule     12    prohibits         a   trial

court from dismissing an action on the basis of a service defect


      13
        In the district court, the County Defendants relied on
two authorities for the proposition that a motion to quash is an
“alternative” to a Rule 12 motion to dismiss. Each of the cited
decisions, however, specifies that the motion to quash was made
pursuant to Rule 12(b)(4).    See Boateng v. Inter Am. Univ. of
P.R., 188 F.R.D. 26, 27 (D.P.R. 1999); R. Griggs Grp. Ltd. v.
Filanto Spa, 920 F. Supp. 1100, 1102 (D. Nev. 1996).



                                              18
when that defense was omitted from the defendant’s pre-answer

motion.     See Pusey v. Dallas Corp., 938 F.2d 498, 510 n.4 (4th

Cir. 1991) (“[A] party’s waiver operates not only to cut off his

right to raise the defense, but the court’s power to invoke

it.”).      As such, the district court erred in dismissing the

County Defendants on a ground that they had waived — namely,

that     they     had    been    served     with     incomplete     copies      of    the

Complaint.

                                            B.

       We   are    constrained       to    reach     the   same    conclusion        with

respect     to     the        district     court’s    dismissal         of    the    City

Defendants.        As related above, the City Defendants filed their

Answer in May 2007 raising four Rule 12(b) defenses in name

only,    without        any    specific    development     of     their      assertions.

And,    although        the   missing     pages    contention     had     already    been

raised by two other defendants, the City Defendants offered no

explanation in their Answer of what defect plagued Patterson’s

service attempt.          What is more, the City Defendants did not even

attempt to join the missing pages contention when the County

Defendants eventually asserted it in their Alternative Motion to

Dismiss     in     November       2007.       Instead,     the     City      Defendants

inexplicably waited until June 2008 — over fourteen months after

the process in question was served, and over a year after the

Answer was filed — to file the Motion to Dismiss asserting that

                                            19
the process was insufficient because the Complaint was missing

pages.

       The principles applicable to our disposition of the County

Defendants’        position       on    appeal       also       foreclose         the     City

Defendants from attempting this two-step method of attacking the

sufficiency of process, first through a generic answer and then

by    way    of    a    Rule      12    motion.           See    Fed.        R.    Civ.    P.

12(h)(1)(B)(ii);        Hemispherx           Biopharma,     Inc.       v.     Johannesburg

Consol. Invs., 553 F.3d 1351, 1361 (11th Cir. 2008) (concluding

that defendant waived insufficiency of service defense by not

advancing it in answer); 5C Charles Alan Wright & Arthur R.

Miller,     Federal     Practice       and    Procedure     § 1391          (3d   ed.   2004)

(observing that any challenge to service of process must be made

“at the time the first significant defensive move is made —

whether     it    be   by   way   of    a    Rule    12   motion       or    a    responsive

pleading”).

       Moreover, although the City Defendants were free to forego

a    Rule   12    motion    and    instead         challenge     the    sufficiency        of

service in their Answer, they were required to preserve that

defense by asserting it with some specificity.                               See Photolab

Corp. v. Simplex Specialty Co., 806 F.2d 807, 810 (8th Cir.

1986) (recognizing that an objection to sufficiency of process

or service of process “must be specific and point out in what

manner the plaintiff has failed to satisfy the requirements of

                                              20
the    service    provision       utilized”);      see    also    SEC    v.    Beisinger

Indus. Corp., 552 F.2d 15, 19-20 (1st Cir. 1977) (determining

that    defendants       waived     particular     service       objection      by    only

raising     unrelated      service     contention).         Thus,       even    where   a

defendant generally raises a service of process contention in

its    answer,     that    contention       will    be    deemed    waived       if    the

defendant fails to adequately develop it in a reasonably prompt

manner.      See, e.g., Datskow v. Teledyne, Inc., 899 F.2d 1298,

1303 (2d Cir. 1990) (concluding that defendant waived defective

service defense by stating it in answer, but not developing it

until motion to dismiss filed four months later).

       Pursuant     to      these     controlling         principles,          the    City

Defendants       waived    their     opportunity     to    challenge      Patterson’s

service of an incomplete Complaint when they filed an Answer

that attacked the sufficiency of process in barebones fashion

only, and then waited over a year before submitting a Rule 12

motion      actually      spelling    out    the   missing       pages    contention.

Because Rule 12(h) bars such a tactic, the district court erred

in dismissing the City Defendants from the action on the basis

of Patterson’s asserted service of an incomplete Complaint. 14

       14
        In these circumstances, we need not address Patterson’s
remaining two claims of error — (1) that the district court
abused its discretion in refusing to extend the time to complete
service of process, and (2) that the court erroneously barred
her from conducting limited jurisdictional discovery.


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                             III.

     Pursuant to the foregoing, we dismiss in part, reverse in

part, and remand for such other and further proceedings as may

be appropriate.

                                                DISMISSED IN PART,
                                    REVERSED IN PART, AND REMANDED




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