May you preserve an objection to personal jurisdiction by including a general denial to the complaint’s allegation in your answer and then moving to dismiss on personal jurisdiction grounds less than three (3) months later? According to the court’s analysis in Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M. 2015), the answer is yes. But the district court observed that a defendant may waive the defense by waiting much longer than that or by actively participating in the case through filing counterclaims or third-party claims, participating in discovery, participating in hearings, or filing dispositive motions on the merits.
In the light of recent, high-profile decisions such as Daimler AG v. Bauman, et al., 134 S. Ct. 746 (2014), and Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011), it may be more difficult for plaintiffs to establish personal jurisdiction over certain defendants. But Fabara only underscores that defendants postpone their objections to personal jurisdiction at their own peril. This case finds the objection preserved when a motion to dismiss was filed less than three (3) months after a general denial of the personal jurisdiction allegation was included in the answer. Yet, the district court observed that, while waiting up to seven (7) months to file the motion to dismiss appears to be acceptable in the case law, courts have found waivers when the defendant waited nine (9) months or more to file the motion.
So what is a litigator to consider when his or her client has a potential challenge to personal jurisdiction?
- Active participation in the case prior to filing a motion grounded upon a personal jurisdiction objection may waive the defense.
- A personal jurisdiction objection is not properly characterized as an affirmative defense and, instead, may be properly preserved with a denial. The burden is on the plaintiff to prove personal jurisdiction.
- It is notable that no other pre-answer Rule 12 motion was filed in this case. If such a pre-answer motion is filed, you must include your personal jurisdiction objection at that time. The law is now settled that, if you file a Rule 12 motion before answering the complaint, you must include any relevant defenses found in Rule 12(b)’s subdivisions (2) through (5).
Tip: While there occasionally may be reasons to wait a short period before filing a motion to dismiss based upon lack of personal jurisdiction, litigants will avoid a litany of waiver arguments by raising this objection as early as possible in a case. Be punctilious.