900 F.2d 250
Albert Charles BURGESS, Jr., Plaintiff-Appellant,
Thomas J. ANDREWS, Defendant-Appellee.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 7, 1989.
Decided March 13, 1990.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, District Judge. (C/A No. 88-1782-4-2).
Albert Charles Burgess, Jr., appellant pro se.
William Reynolds Williams, Willcox, Hardee, McLeod, Buyck, Baker & Williams, Florence, S.C., for appellee.
VACATED AND REMANDED.
Before DONALD RUSSELL, WIDENER, and MURNAGHAN, Circuit Judges.
Albert Charles Burgess, Jr., appeals from the district court's order dismissing his legal malpractice diversity action against Thomas J. Andrews, his former attorney. The district court granted Andrews's motion to dismiss for lack of personal jurisdiction. However, Andrews did not move for dismissal for lack of personal jurisdiction until after he had filed an answer to Burgess's complaint. The defense of personal jurisdiction is waived if it is not raised by motion before the responsive pleading or in the responsive pleading. Fed.R.Civ.P. 12(b)(2), 12(h)(1); Bethlehem Steel Corp. v. Devers, 389 F.2d 44 (4th Cir.1968). We hold that Andrews waived the defense of personal jurisdiction by failing to raise it before his answer or in the answer. Consequently, we vacate the district court's dismissal and remand for further proceedings.* We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
VACATED AND REMANDED
Our decision is without prejudice to any motion brought by Andrews to transfer the action under 28 U.S.C. Sec. 1404(a)