suggests that this deadline for service was in fact met. More importantly, Defendants have not demonstrated that Gonzales was not timely served within that period. Defendants have waived the right to contest whether Plaintiffs properly served Jason Gonzales. Rule 12(b)(5) permits a party to move to dismiss for insufficient service of process, which includes the failure to serve within 120 days. Martinez-Jones v. Dulce Indep. Schs., No. CV 07-0703 JB/WDS, 2008 WL 2229457, at *4-5, 2008 U.S. Dist. LEXIS 42321, at *11-12 (D.N.M. Mar. 14, 2008). However, a Rule 12(b)(5) defense is waived if it is not brought before a responsive pleading is filed. Fed.R.Civ.P. 12(b) (“a motion asserting any of these defenses must be made before pleading if a responsive pleading is required”) & 12(h)(1)(B) (<HOLDING>). Gonzales filed a responsive pleading in
holding that a motion for rule 37 sanctions should be promptly made thereby allowing the judge to rule on the matter when it is still fresh in his mind and that the motion should normally be deemed waived if it is not made prior to trial holding that it is not holding that the statute of limitations in a criminal case is a nonjurisdictional affirmative defense that is waived if not raised in the trial court holding that suppression issue not raised to the district court was waived under rule 12 holding a 12b5 defense is waived if it is not made in a rule 12 motion or if it is not included in a responsive pleading