Are all defenses waived if you omit them?

• A. Yes
• B. Not sure
• C. Only some are waived
• D. No; some are easily waived, but others are never waived

Answer: (D)

In civil procedure, defenses to a complaint aren’t all treated the same when you don’t raise them. Some defenses must be raised early or they’re waived, while others aren’t waived at all and can be brought up later. The correct idea here is that not all defenses disappear if you omit them; some are easily waived, but others are never waived. A key example is that lack of subject matter jurisdiction is a non-waivable issue that can be raised at any time (even on appeal), whereas many other defenses must be raised in the initial responsive pleading to avoid waiver.