Must service of process challenges be raised in the first Rule 60(b) motion? State v. All Real Property Explained

In State v. All Real Property, the Utah Court of Appeals addressed whether a party can raise insufficiency of service of process challenges in a second Rule 60(b) motion after failing to include them in the first motion to set aside a default judgment.

Background and Facts
Bruce Petersen owned property at 736 North Colorado Street in Salt Lake City. Following his federal drug convictions, the State initiated forfeiture proceedings against the property. The State served Petersen with the complaint and notice by certified mail, which he never accepted despite three delivery attempts. After the trial court entered a default judgment forfeiting his property interest, Petersen filed his first Rule 60(b) motion challenging only the service of the notice, not the complaint. When that motion was denied and affirmed on appeal, Petersen filed a second Rule 60(b) motion, this time challenging service of the complaint.

Key Legal Issues
The court addressed whether Petersen waived his challenge to service of the complaint by failing to raise it in his first Rule 60(b) motion. The issue centered on the application of Rule 12(h), which requires parties to assert all available defenses in their first responsive pleading or motion, or those defenses are waived.

Court’s Analysis and Holding
The court applied the waiver doctrine from Rule 12(h), noting that parties must raise all Rule 12(b) defenses, including insufficiency of service of process, in their first responsive pleading or preanswer motion. Drawing on federal circuit court precedent, particularly Valdez v. Feltman, the court held that when a party’s first responsive pleading is a Rule 60(b) motion, failure to include insufficiency of service challenges in that motion waives those claims. The court emphasized the policy of requiring all preanswer motions to be presented early and simultaneously to promote judicial efficiency.

Practice Implications
This decision establishes that Rule 60(b) motions function as responsive pleadings for waiver purposes. Practitioners challenging default judgments must include all available Rule 12(b) defenses in their initial motion to preserve them for appeal. The court’s reliance on federal precedent suggests Utah courts will continue applying strict waiver rules to promote efficiency and prevent piecemeal litigation in post-judgment proceedings.