A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. A party does not waive a defense or objection by joining it with one or more other defenses or objections in a responsive pleading or in a motion. A party may assert improper venue as a defense only if the action cannot be or could not have been transferred to the proper county under A.R.S. §.
Ariz. R. Civ. P. 12
State Bar Committee Note
1966 Amendment to Rule 12(h)
The first paragraph of this subdivision is not in the amended federal rule. Under the previous rule, numerous federal court decisions had divided on whether, when the party sees fit to offer a defensive motion, he may thereafter allege the defenses mentioned in this rule in his answer when he has not included them in his motion. The revised rule adopts the holding of those cases concluding that the defense is waived in such circumstances. The rule states that lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process are waived if (a) a party offers a motion and (b) does not include them. This re-emphasizes the policy of avoiding piecemeal decisions.
This does not mean that the party must make a motion. He may leave these defenses to his answer if he wishes; the requirement of the rule is merely that if he does make a motion, he must include them all at once. However, the rule further provides that the same defenses are waived unless included in either a motion or an answer, subject only to amendments as a matter of course.
This waiver rule applies only to the defenses specified, some defenses being regarded as too important to be subject to such waiver. These are the defenses of failure to state a claim upon which relief can be granted; failure to join party who is indispensable under Rule 19; failure to state a legal defense; and want of jurisdiction over the subject matter. Each can be subsequently raised.
The amendment does not alter the results of existing Arizona decisions and is in accord for example with Baxter v. Harrison, 83 Ariz. 354, 321 P.2d 1019 (1958).