Plummer v. Sherman

Summary

The Delaware Supreme Court held that Susan A. Sherman waived the defense of lack of personal jurisdiction by failing to raise it in a timely motion, answer, or permissible amendment under Delaware Superior Court Civil Rules 12 and 15. The court reversed the Superior Court’s dismissal and remanded for consideration of the remaining failure-to-prosecute issue.

Holdings

1. A defense of lack of personal jurisdiction is waived when it is not raised by a timely Rule 12 motion, included in the first responsive pleading, or included in an amendment permitted as a matter of course under Rule 15(a). Sherman waived the defense by omitting it from her answer and subsequent motion and first raising it at argument.
2. A defendant is not entitled to amend an answer to add lack of personal jurisdiction at any time; the amendment must be one permitted as a matter of course under Rule 15(a). Because Sherman did not amend within twenty days after serving her answer, the defense remained waived.

Questions Presented

1. Whether Sherman waived the defense of lack of personal jurisdiction by failing to assert it in a timely Rule 12 motion, in her answer, or in an amendment permitted as a matter of course under Rule 15(a).
2. Whether the Superior Court could revive or permit amendment to add the personal-jurisdiction defense after the defense had been waived.
3. Whether the dismissal for lack of personal jurisdiction should be reversed and the unresolved failure-to-prosecute issue remanded for determination.

Disposition

reversed_and_remanded