At page 821 Permitting expansion of motion grounds before hearing10 citing casesholding that the waiver provision of Rule 12 does not "prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing
- Joel D. Tillman v. Warner B. Tillman, No. 2025-0475-PAF (Del. Ch. Sept. 23, 2026).publishedThe court explained that Rule 12(h)(1) “‘does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing.’” Id. at 1341 n.8 (quoting MacNeil v. Whittemore, 254 F.2d…
- Juan Sanchez v. Alberto Aguilera Valadez, AKA Juan Gabriel Maria De La Paz Arcaraz, 967 F.2d 590 (9th Cir. 1992).unpublishedBank, 534 F.2d 1335 , 1341 n. 8 (9th Cir.1976) (quoting MacNeil v. Whittemore, 254 F.2d 820, 821 (2d Cir.1958)). 6 The weekend between the filing of the "Supplement" in this case and the scheduled hearing, however, hardly qualifies as "wel…
- Guccione v. Flynt, 617 F. Supp. 917 (S.D.N.Y. 1985).publishedAs Judge Bonsai observed in Silver v. Countrywide Realty, Inc., 39 F.R.D. 596, 599 (S.D.N.Y.1966), “[N]o waiver will result where the new ground is raised shortly after the Notice of Motion and well before the hearing.” See also MacNeil v.…
- Bray v. Bayles, 609 P.2d 1146 (Kan. Ct. App. 1980).publishedA good illustration is provided by MacNeil v. Whittemore [ 254 F.2d 820, 821 (2d Cir. 1958)], in which the Second Circuit affirmed the district court’s grant of leave to amend a motion to dismiss by adding a defense of improper venue.
- Harry Bechtel & Cathleen Bechtel, Husband & Wife v. Liberty Nat'l Bank, a Nat'l Banking Ass'n, 534 F.2d 1335 (9th Cir. 1976).publishedBut Rule 12(h)(1), Fed.R.Civ.P. “does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing.” MacNeil v. Whittemore, 254 F.2d 820, 821 (2d Cir. 1958). 9 .
- Sunrise Toyota, Ltd. v. Toyota Motor Co., 55 F.R.D. 519 (S.D.N.Y. 1972).publishedAs Judge Bonsai observed in Silver v. Countrywide Realty, Inc., 39 F.R.D. 596, 599 (S.D.N.Y.1966), “[N]o waiver will result where the new ground is raised shortly after the Notice of Motion and well before the hearing.” See also MacNeil v.…
- Polaroid Corp. v. Feely, 889 F. Supp. 21 (D. Mass. 1995).published(Rule 12 does not prevent a court in its discretion from permitting a party to expand the grounds of a motion in advance of the hearing)
- Seal v. Riverside Fed. Sav. Bank, 825 F. Supp. 686 (E.D. Pa. 1993).published([Rule 12(h)] does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing.’’)
- Friedman v. World Transp., Inc., 636 F. Supp. 685 (N.D. Ill. 1986).publishedSee MacNeil v. Whittemore, 254 F.2d 820, 821 (2d Cir.1958); Martin v. Lain Oil & Gas Co., 36 F.Supp. 252, 255 (E.D.Ill.1941); 5 Wright & Miller, Federal Practice & Procedure, § 1389 (1969), at 847-48.
- Myrtle Gannon v. John Cuckler, M. D., 281 So. 3d 587 (Fla. 2d DCA 2019).published(holding that the waiver provision of Rule 12 does not "prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing)
Other citing cases
- Nix v. Hoke, 62 F. Supp. 2d 110 (D.D.C. 1999).published
v.
Arthur E. WHITTEMORE, Defendant-Appellee
It is quite clear that this action against a judge of the highest court of Massachusetts, who has only a summer place in Vermont, for claimed violation of plaintiff’s civil rights through official action does not satisfy the venue requirements of 28 U.S.C. § 1391(a), since neither party resides in the District of Vermont. The only claim is waiver, because defendant first sought a dismissal for failure to state a claim and two days later moved for leave to amend his motion by adding the venue objection. When the court came to hear the motion nearly a month later, it granted the leave to amend and then dismissed because of the lack of venue. This was quite proper. The waiver provided in Fed.Rules Civ.Proc., rule 12(h), applies only where a waivable defense is not presented either by motion or by answer; it does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing. Plaintiff’s application here to strike portions of defendant’s brief is denied as wholly frivolous.
Affirmed.