Focus on the 12(g)(2) phrase 'a defense or objection that was available to the party but omitted from its earlier Motion.' Could you argue that this defense was not 'available' to you when you filed your Motion and now attempt to assert it in a second Motion?

• A. Yes
• B. No
• C. Only if you get permission
• D. It depends

Answer: (B)

Rule 12(g)(2) bars raising in a second Rule 12 motion any defense or objection that was available to raise in the first motion but was omitted. The point is to prevent “sandbagging” by waiting to see how the case develops and then raising new defenses later.

“Available” means there was a plausible basis to raise the defense at the time of filing the initial motion, based on the law and the facts then known or reasonably knowable. If a defense truly could have been argued then, you must include it; you can’t wait and try to raise it after the fact in a subsequent motion. The rule exists to streamline pleading and avoid surprise.

So arguing that the defense wasn’t available at the time would generally fail, because the defense would only be exempt from waiver if it truly could not have been raised earlier. In most situations, once it could have been argued, you must include it in the first motion.