Yeazell, p. 92-93: “Note on
the Mechanics of Jurisdiction: Challenge and Waiver”
What strategies can a lawyer use
to argue a certain court doesn’t have personal jurisdiction over a party?
1.
Collateral
attack
a.
Just
don’t show up for the first lawsuit!
b.
Show
up when the other party tries to enforce the judgment made against you ex
parte and attack the judgment!
c.
This
is very risky. If the second
court says that the first court did have jurisdiction, you’re
screwed! You can’t present any other
defense!
d.
Jurisdiction
is the only thing open to collateral attack.
2.
Jurisdictional
challenges in the first lawsuit
a.
If
you want to argue the court doesn’t have jurisdiction, you must include this
defense in your pre-answer motion if you make one. If you don’t, you must include this defense in
your answer motion. If you show up or
fight over other issues without challenging personal jurisdiction, you waive
the right to use this defense! Look out! In other words, if you don’t use some
defenses at the earliest possible time, you can’t ever bring them up later. You must use this defense promptly.
b.
There
are some jurisdictions where you can make a special appearance…it’s sort
of a fictional appearance. You can
appear without consenting to a state’s jurisdiction for the specific purpose of
arguing that you’re not subject to personal jurisdiction in that
state. In some states, you can appeal
the decision not to dismiss based on personal jurisdiction. On the other hand, in other states and in the
federal courts you have to wait until final judgment and then appeal the whole
thing.
i.
If
I’m the defendant, I would prefer to have the case dismissed sooner rather than
later to reduce the costs and uncertainty to me, so I would want the appeal to
be immediate. If I’m the defendant’s
attorney, I might well selfishly prefer that the proceedings go on longer so I
make more money.
ii.
If
I’m the plaintiff, I would perhaps prefer that the appeal be postponed until
after final judgment. Maybe this would
put more pressure on the defendant to settle the case before final judgment.
Notes and Problems
1.
If
defendants can waive the personal jurisdiction defense as easily as they can,
it must be the case that this defense places a high burden on the defendant to
put it before the court.
2.
So
not as much is at stake when you make a motion as when you answer a complaint.
3.
The
premium on the jurisdiction issue is that it trumps everything else, and if the
court doesn’t have personal jurisdiction it doesn’t want to waste its time
doing anything else with that particular case.
You want to make sure that defendants have the right incentive to do
this defense first before going through the answer and trial and everything.
a.
The
defendant can make a 12(b)(6) motion any time, that is, they can argue at any
time that the plaintiff has failed to “state a claim upon which relief can be
granted”. But if the defendant makes
this motion, the defendant cannot subsequently include 12(b)(2) in the answer.
b.
Once
the defendant has made the 12(f) motion but fails to include the 12(b)(2) with
it, their 12(b)(2) is dead.
c.
This
would be a 12(b)(3) followed by a 12(b)(2).
I think you would have to do them together in order for the 12(b)(2) to
stand.
4.
All
sorts of things can be construed to constitute waiver of one’s objection to
personal jurisdiction. Be careful!