Cite as 2013 Ark. 232
trademarks, that the registration of the trademarks was contrary to the law, and that "the registrations should be cancelled." In paragraph 35 of the Commission's answer to the amended complaint, the Commission stated that it “incorporates by reference all defenses and arguments raised in its motion to dismiss the amended complaint . . . and its brief in support of its motion to dismiss." In its brief, the Commission asserted that "[b]ecause the plaintiff’s trademarks are deceptively misdescriptive and are likely to deceive consumers, the plaintiff's trademarks are invalid and should be cancelled."
We hold that the Commission’s answer to the second amended complaint, however, superseded and replaced its two prior answers. While the Commission's answer to the second amended complaint incorporated certain responses it made in its amended answer, it did not incorporate a request for cancellation of the trademarks. This pleading instead superseded all prior answers and established that the Commission relied on and pleaded the doctrine of sovereign immunity. Clearly, in the Commission's answer to the second amended complaint, the Commission raised the defense of sovereign immunity and did not seek affirmative relief.[1]
- ↑ Though not argued by the parties, we are mindful that Rule 12(h)(1) of the Arkansas Rules of Civil Procedure provides that "[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in the original responsive pleading. Sovereign immunity is an affirmative defense that must be specifically asserted in a responsive pleading under Rule 8(c), but because it is not a defense listed in Rule 12(h)(1), it may be raised in an amended answer under Rule 15(a). See Seth v. St. Edward Mercy Med. Ctr., 375 Ark. 413, 419–20, 291 S.W.3d 179, 184 (2009) (holding that waiver of the defense of charitable immunity did not result from failure to plead it in the original answer).
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