Lonberg v. City of Riverside ( 2009 )

SILVERMAN, Circuit Judge,

dissenting:

Because I believe the City of Riverside waived its argument that 28 C.F.R. § 35.150(d) is not privately enforceable, I dissent.

The City did not raise this defense in its answer, in a motion to dismiss, in a motion for summary judgment, or even at trial. Instead, the City waited until after trial— after the district court issued a decision in Lonberg’s favor — to argue for the first time in a motion for new trial that § 35.150(d) is not privately enforceable. Even worse, after Lonberg argued in his opening brief to us that the City had waived this argument by not raising it before trial, the City offered not one word of rebuttal about the waiver argument. It seems to me the City has doubly waived its argument — it did not raise it prior to trial in the district court and it failed to reply to the waiver argument made before us in the court of appeals.

Under Federal Rule of Civil Procedure 12(h)(2), a Rule 12(b)(6) defense must be raised at or before trial. Here, the City raised its defense after the trial concluded and after the district court rendered a decision against it, even though “the City’s [defense] may be characterized as a Rule 12(b)(6) defense,” as the majority itself acknowledges.

Even if we have the discretion to reach this issue notwithstanding the City’s failure to perfect it below, I do not see why we should. The City’s belated assertion of this new defense is most unfair to Lonberg who prevailed at trial in the face of the defenses that were raised and litigated. Why should the City be allowed to wait until it loses and then get another chance to raise an entirely new non-jurisdictional defense that was perfectly available before? This makes a mockery of the rules of civil procedure requiring that claims and defenses be timely raised. There are good reasons for these rules, too — like fairness and avoidance of surprise.

What is the City’s answer to Lonberg’s assertion that the new argument has been waived? Nothing. Not a word. In its brief before us, the City offered no explanation whatsoever for its failure to raise its argument earlier, or even a justification for why the argument has not been waived. The City’s brief is totally silent in response to Lonberg’s claim of waiver. This failure alone counsels against the exercise of discretion to consider the City’s new-found position at this late date.

I would affirm.