
USCA1 Opinion

	




          April 18, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2127                                 PETER PAUL MITRANO,                                Plaintiff, Appellant,                                          v.                              JERRY'S FORD SALES, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Peter Paul Mitrano on brief pro se.            __________________            Howard  B.  Myers and  Brown, Olson  & Wilson,  P.C. on  brief for            _________________      _____________________________        appellee.                                 ____________________                                 ____________________                 Per Curiam.   We have  carefully reviewed the  record in                 __________            this  case, including the briefs  of the parties.   We affirm            the dismissal of plaintiff/appellant's complaint for  lack of            personal jurisdiction.                 Plaintiff/appellant    has    failed   to    show   that            defendant/appellee  "purposefully  availed   itself  of   the            privilege  of conducting  activities within  [New Hampshire].            Hanson  v.  Denckla, 357  U.S. 235,  253  (1958).   Where all            ______      _______            negotiations relevant to the  purchase of the automobile took            place entirely out of state, see United Electrical Workers v.                                         ___ _________________________            163  Pleasant  Street Corp.,  960 F.2d  1080, 1090  (1st Cir.            ___________________________            1992)   (location  of   negotiations  vitally   important  to            jurisdictional inquiry based on  contract), the mere  mailing            of papers  to New  Hampshire  is an  insufficient contact  to            support the exercise of jurisdiction over defendant/appellee.                 Appellant  contends,  however,  that  defendant/appellee            waived this  defense because, although it  raised the defense            of  lack of personal jurisdiction  in its answer,  it did not            include  that defense  in its  subsequent motion  to dismiss.            Appellant's  position is  not entirely  without  support. See                                                                      ___            Arkwright Mutual  Insurance Co. v. Scottsdale  Insurance Co.,            _______________________________    _________________________            874 F. Supp.  601, 603  (S.D.N.Y. 1995) (defense  of lack  of            personal jurisdiction waived by failure to raise it in  first            Rule 12 motion, even though defendant included it in answer);            Committee  v. Reimer Co., L.P.A., 150  F.R.D. 495, 498 (D.Vt.            _________     __________________            1993)  (same).  However, we  think that a  careful reading of                                         -2-            the relevant language and purpose of  Rule 12 indicates that,            in this case, the defense was preserved.                 "The  purpose of  Rule  12 is  to eliminate  unnecessary            delays in the  early pleading stages  of a suit  so that  all            available Rule  12 defenses are advanced before consideration            of the merits."   Manchester Knitted Fashions v. Amalgamated,                              ___________________________    ___________            967 F.2d 688, 691 (1st Cir. 1992) (citing cases).  To  effect            this purpose, Fed. R. Civ. P. 12(h)(1)  provides that certain            defenses,  including the lack  of personal  jurisdiction, are            waived, in one of  two circumstances: "(A) if omitted  from a            motion in the circumstances described in [Rule 12(g)], or (B)            if it is neither made by motion under this  rule nor included            in a responsive  pleading . . ."   Which  of the two parts of            this rule  applies depends on  the form of  defendant's first            defensive move.   If defendant's  first defensive  move is  a            preanswer motion, section A  requires that the motion contain            all  applicable  defenses.    That  12(h)(1)(A)  applies   to            preanswer  motions  is  made   clear  by  the  1966  Advisory            _________            Committee's  notes  to  Rule  12(h)(1)  (Rule  provides  that            "certain specified defenses, which  were available to a party            when he made  a preanswer  motion but which  he omitted  from                            _________________            that  motion, are  waived") (emphasis added),  as well  as by            part A's reference to Rule 12(g), see 1966 Advisory Committee                                              ___            notes  to Rule 12(g) (Rule precludes "a defendant who makes a            preanswer motion under this rule from making a further motion            ________________________________                                         -3-            presenting any  defense or  objection which was  available to            him at the time he  made the first motion and which  he could            have included but did not in fact include therein."); Pilgrim                                                                  _______            Badge & Label Corp. v. Barrios, 857 F.2d 1,3 (1st  Cir. 1988)            __________________     _______            ("'[s]ubdivision  (g)  contemplates  the  presentation  of an            omnibus preanswer  motion in  which defendant  advances every                    _________            available Rule 12 defense  and objection he may have  that is            assertable by  motion.") (quoting 5 Wright  & Miller, Federal                                                                  _______            Practice  & Procedure:  Civil    1384 at  837 (1969))).   If,            _____________________            however,  the   first  defensive  move  of   defendant  is  a            responsive pleading, 12(h)(1)(B) requires that the defense of            lack  of personal  jurisdiction be  raised in  that pleading.            Taken  together,   Rule  12(h)(1)(A)  &  (B)   require  "that            defendants wishing  to raise [a  defense of lack  of personal            jurisdiction] must do so in their first defensive move, be it                          ________________________________________            a Rule 12  motion or a responsive  pleading."  Glater  v. Eli                                                           ______     ___            Lilly & Co.,  712 F.2d  735, 738  (1st Cir.  1983); see  also            ___________                                         ___  ____            Roque  v.  United States,  857 F.2d  20,  21 (1st  Cir. 1988)            _____      _____________            (Under Rule  12(h)(1), "defense of [personal jurisdiction] is            waived  if not raised  in the  answer (or  in a  motion filed            prior to  or contemporaneously with the  answer).") (emphasis            _____            in original).                   In  the  instant  case,  defendant/appellee  raised  the            defense of lack of personal jurisdiction in its answer to the            complaint.    Since   this  was  defendant/appellee's   first                                         -4-            defensive move, the waiver provisions of Rule 12(h)(1) do not            apply.   Nor  did  defendant/appellee waive  that defense  by            failing  to  raise  lack  of  personal  jurisdiction  in  its            subsequent postanswer motion to dismiss, see Bronlow v. Aman,                       __________                    ___ _______    ____            740 F.2d 1476,  1483 n.1 (10th Cir. 1984) (defense of lack of            personal jurisdiction  not waived  even though not  raised in            answer to amended  complaint since it had already been raised            in   an   initial  motion   to  dismiss),   especially  since            defendant/appellee  showed no lack  of diligence  in pressing            this  issue  before  the district  court,  cf.  Rice v.  Nova                                                       __   ____     ____            Biomedical  Corp., 38 F.3d 909, 914 (7th Cir. 1994) (although            _________________            raised  in  initial pleading,  defense  of  lack of  personal            jurisdiction  waived when  not pressed  again until  appeal);            Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (same).            _______    ____                 Affirmed.                 ________                                         -5-
