Last year, the Seventh and D.C. Circuits addressed the contours of personal jurisdiction in federal class actions. Now, the Ninth Circuit Court of Appeals has joined the mix in Moser v. Benefytt, Inc., __ F.4th __, 2021 WL 3504041 (9th Cir. Aug. 2021).
In Moser, after the district court denied the defendant’s 12(b)(6) motion to dismiss, the plaintiff “asked the district court to certify two nationwide classes.” In response, the defendant challenged class certification, arguing the district court lacked personal jurisdiction over all nonresident putative class members “under Bristol-Myers.” Reasoning the defendant “waived its personal jurisdiction defense by not raising it at the motion to dismiss stage,” the district court refused to address the defendant’s Bristol-Myers argument and certified “two nationwide classes.”
On appeal, the Ninth Circuit reversed. Tracking the reasoning of the D.C. Circuit in Molock v. Whole Foods Market Grp., Inc., 952 F.3d 293 (D.C. Cir. March 10, 2020), the Ninth Circuit found that the defendant “could not have moved to dismiss on personal jurisdiction grounds the claims of putative class members who were not then before the court.” As the defendant was not “required to seek dismissal of hypothetical future plaintiffs,” the Ninth Circuit vacated the class certification order and remanded to the district court with instructions to address the merits of the defendant’s Bristol-Myers argument.
Like the D.C. Circuit in Moser, the Ninth Circuit refrained from explicitly deciding whether Bristol-Myers precludes the exercise of personal jurisdiction over nonresident putative class members in a federal court forum in which a defendant is not “at home.” Nevertheless, Moser gives defendants in the Ninth Circuit breathing room to challenge personal jurisdiction over putative class members at class certification without fear of waiver.