Civil Procedure Multistate Bar Practice Exam

Which of the following defenses is waived if not included in the defendant's first response?

1. Lack of subject matter jurisdiction

2. Failure to state a claim

3. Improper venue

4. Failure to join an indispensable party

The correct answer is: Improper venue

The correct response is that improper venue is waived if not included in the defendant's first response. In civil procedure, certain defenses are considered "waivable" and must be raised in the initial pleadings or response to avoid being forfeited in subsequent stages of litigation. Improper venue is one of those defenses that must be asserted early in the proceedings. If a defendant fails to raise the issue of improper venue in their first responsive pleading, they are generally considered to have waived that defense. This approach promotes judicial efficiency and prevents defendants from delaying, as they must assert all known defenses at the outset. In contrast, other defenses, like lack of subject matter jurisdiction, can be raised at any time, even for the first time on appeal. Similarly, failure to state a claim and failure to join an indispensable party are also issues that have different treatment regarding when they can be raised, but they are not automatically waived like the improper venue defense is. Thus, the clear delineation of procedurally waivable versus non-waivable defenses is critical in the management of civil litigation.