Legal Memorandum: Assertion of a Jurisdictional Defense

Issue: Under Hawaii law, may an affirmative defense of lack of personal jurisdiction be asserted for the first time in an answer to an amended complaint?

“When a jurisdictional defense is omitted from a defendant’s original answer, may it be asserted in an amended answer responding to an amended complaint?”  Sanchez v. L.L.H. Recycled Aggregates, 147 Misc. 2d 41, 554 N.Y.S.2d 398 (Sup. Ct. 1990).  Most courts considering the issue have concluded that it may not.  In Sanchez, the New York Supreme Court, Queens County, “considered the diverse wavering views regarding jurisdictional waiver” and found that a defendant’s failure to assert a jurisdictional defense in response to the original complaint amounts to a waiver of that defense that cannot be asserted at a later time.  Other courts around the country, both state and federal, have held similarly:

• Boulay v. Olympic Flame, Inc., 165 A.D.2d 191, 565 N.Y.S.2d 905 (App. Div. 1991) (a jurisdictional defense not asserted in the original answer may thereafter be asserted only during the time within which to amend the original answer.  An answer to an amended complaint is not an amendment as a matter of right.).

• Gilmore v. Shearson/Am. Express, Inc., 811 F.2d 108 (2d Cir. 1987) (“Although an amended complaint ordinarily supercedes [sic] the original pleading . . . it does not automatically revive all of the defenses and objections that a defendant has waived in response to the original complaint.  For example, even though Rule 15 of the Federal Rules of Civil Procedure does not expressly limit the defenses that can be alleged in response to […]