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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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whether it be by way of a Rule 12 motion or a responsive pleading.” JP Morgan Chase Bank,
N.A. v. Law Office of Robert Jay Gumenick, P.C., No. 08 Civ. 2154 (VM), 2011 WL 1796298, at
*2 (S.D.N.Y. Apr. 22, 2011) (quoting 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 5C
FEDERAL PRACTICE & PROCEDURE § 1391 (3d ed. 2010)).
While the District Court on July 12, 2011 ordered the Moving UBS Defendants, Moving
Luxalpha Director Defendants, Moving Access Defendants, and Delandmeter to brief the
threshold issues of standing and SLUSA preemption [S.D.N.Y. ECF No. 10], this was not an
invitation to play fast and loose with the rules. They had the opportunity to bring to the District
Court’s attention their anticipated defense of lack of personal jurisdiction in their letters to the
Court at that time regarding their forthcoming motions to dismiss—but did not. [See, e.g.,
S.D.N.Y. ECF No. 10.] Instead, they simply asserted that they intended to “preserve” the
defense in their August 1, 2011 moving papers in support of their motion to dismiss for lack of
standing and SLUSA preemption. (See [S.D.N.Y. ECF No. 18] at 1 n.1; [S.D.N.Y. ECF No. 20]
at 4.) The District Court’s briefing order did not exempt them from compliance with Rule
12(h)(1). Rather, it merely relieved them from briefing anything other than their standing and
SLUSA arguments at that juncture. They could have, and should have, identified all of their
Rule 12(b) objections in their motion before the District Court, even if briefing on some of those
objections was temporarily held in abeyance.
The Moving UBS Defendants, Moving Luxalpha Director Defendants, Moving Access
Defendants, and Delandmeter’s attempt to “preserve” the defense of lack of personal jurisdiction
by simply announcing their intent to contest the Court’s jurisdiction at a later point in time is
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