The Leave to Plead as a Waiver of the Jurisdictional Defenses

Civil Rule 12(B) includes three defenses which challenge in personam jurisdiction. They are the 12(B)(2) defense of lack of jurisdiction over the person, the 12(B)(4) defense of insufficiency of process, and the 12(B)(5) defense of insufficiency of service of process. Not infrequently, the assertion of any one or more of these defenses is haunted by the ghost of the old "special appearance," and that which makes the ghost rattle its chains is often the defendant's taking a leave to move or plead before presenting these defenses to the court. In such case it is usually said that the taking of leave is the entry of a general appearance which waives the three jurisdictional defenses.

However, for reasons which shall be given in this article, there is no more substance to this argument than there is to any ectoplasmic apparition. Under the Ohio Rules of Civil Procedure, the taking of leave to move or plead is an appearance by the defendant in the action, but in and of itself, it is not an appearance that waives the jurisdictional defenses.