(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (a) if omitted from a motion in the circumstances described in Rule 12.07, or (b) if it is neither made by motion under Rule 12 nor included in a responsive pleading or an amendment thereof permitted by Rule 15.01 to be made as a matter of course.
Rule 12.08.Waiver or preservation of certain defenses.
Current through June 18, 2026 · Last verified July 9, 2026
In one sentenceRule 12.08 sorts Rule 12 defenses into three groups: personal jurisdiction, venue, process, and service objections that are waived if not raised early; failure-to-state-a-claim, indispensable-party, and legal-defense objections that survive omission; and subject matter jurisdiction, which the court must enforce whenever it appears lacking.
Full Text of Rule 12.08
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7.01, or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
Amendment History
The source reproduced here (current through June 18, 2026) records no amendment to this rule since its original adoption — no History line appears for it in the compiled rules. For the underlying adopting order and any later amendments, see the West’s Rules & Procedures.
Plain-English Summary
Rule 12.08 explains which defenses disappear if a party sits on them and which ones stay available through trial. The first group covers lack of personal jurisdiction, improper venue, insufficiency of process, and insufficiency of service of process. These are waived if a party omits them from a Rule 12 motion under the circumstances described in Rule 12.07, or if the party never raises them by motion or in a responsive pleading, including an amendment permitted as a matter of course under Rule 15.01. In practice, these defenses have to surface at the first real opportunity or they are gone.
The second group is more forgiving. Failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and an objection that a pleading fails to state a legal defense to a claim can all be raised later: in any pleading permitted under Rule 7.01, by a motion for judgment on the pleadings, or at trial on the merits. Omitting them earlier in the case does not close the door.
The third rule stands apart from waiver entirely. Whenever it appears that the court lacks jurisdiction over the subject matter of the action, the court must dismiss it. That duty does not depend on any party raising the issue and is not subject to the time limits that apply to the other defenses.
Frequently Asked Questions
Can I raise a lack of personal jurisdiction defense whenever I want?
No. A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived if it is left out of a motion under the circumstances Rule 12.07 describes, or if it is never raised by motion or in a responsive pleading or permitted amendment.
What if I forget to argue failure to state a claim in my first motion?
That objection is not waived. Rule 12.08(2) allows failure to state a claim, along with failure to join an indispensable party and failure to state a legal defense, to be raised in a later pleading, by motion for judgment on the pleadings, or at trial.
Can a case be dismissed for lack of subject matter jurisdiction after the case has been going on for years?
Yes. Rule 12.08(3) requires the court to dismiss the action whenever it appears that subject matter jurisdiction is lacking, with no time limit tied to that duty.
Source & verification. The rule text is reproduced verbatim from the
official Kentucky Rules of Civil Procedure (Ky. R. Civ. P. 12.08). Prescribed by the Supreme Court of Kentucky (Ky. Const. § 116). The plain-English summary is original and written by us. Last verified July 9, 2026. ·
Official source
Also known as: waiver of personal jurisdiction defensewhen is lack of jurisdiction over the person waivedfailure to state a claim never waivedsubject matter jurisdiction dismissal Kentuckypreserving defenses in Kentucky courtsCR 12.08 waiver rule