motion to dismiss for lack of subject matter jurisdiction. The original complaint names Mr. Pachaly as a defendant, contains many allegations relating to Mr. Pachaly and requests various forms of relief from him. In fact, as regards Mr. Pachaly, the original complaint is almost identical to the amended complaint.
Some courts have permitted parties to amend their initial Rule 12 motions to add defenses listed in Rule 12(h)(1) where those motions were not yet decided, thereby allowing the parties to avoid waiver. See Friedman v. World Transportation, Inc., 636 F. Supp. 685, 688 (N.D. Ill. 1986) (amended motion to dismiss filed three days after original motion and prior to ruling was timely); see also Cross v. Simons, 729 F. Supp. 588, 590 n.1 (N.D. Ill. 1989). A finding that Mr. Pachaly's Rule 12 motion to dismiss based on personal jurisdiction amends his motion to dismiss arguing lack of subject matter jurisdiction is not warranted here because the second motion was filed three months after the first was filed and two months after it was moot. Also, Mr. Pachaly never requested permission or indicated an intent to amend his first motion; and, the second motion, which is not titled "amended motion to dismiss" and does not mention the first, on its face is a discrete filing rather than an amendment to the first.
Finally, a finding of waiver does not depend on the court's prior disposal of the initial pre-answer motion. See Club Assistance Program, Inc. v. Zukerman, supra, 594 F. Supp. at 342-44. Therefore, the fact that the first motion was resolved without requiring the court's ruling has no impact on the issues.
Mr. Pachaly's defense that this court lacks personal jurisdiction over him was available to him at the time he filed his motion to dismiss for lack of subject matter jurisdiction. Under the authorities discussed above, Mr. Pachaly has waived his right to now raise an objection based on in personam jurisdiction, and accordingly, his motion is denied.
Elaine E. Bucklo
United States District Judge
Dated: October 12, 1995
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