Concept
Consequences of Waiver
Waiver of personal jurisdiction
Consequences of Waiver
Rule 12(b)(2) lists lack of personal jurisdiction among the defenses a defendant may raise by motion, and the earlier sections of this chapter traced the ways a defendant loses it: by leaving it out of the first response, by omitting it from a consolidated pre-answer motion, by missing the short window for amending the answer, or by failing to press it after pleading it.1 This section asks what the case looks like once the defense is gone.
The answer follows from the premise on which the chapter began: the objection is the defendant's own right, and a right can be given up. When the defendant gives it up, the defendant's consent replaces the missing basis for reaching the defendant. A court that could not have bound a defendant who objected in time can bind one who did not. Two effects follow, and they run in different directions. The first frees the judge from any duty to protect a right its holder has abandoned. The second closes the judgment to a later attack by a defendant who chose not to contest jurisdiction while the choice was open.
Subject-matter jurisdiction supplies the contrast. It concerns the court's power over the controversy and is not a matter of personal right, so a party may raise a subject-matter objection at any time, even for the first time on appeal, and the court has an independent obligation to inquire into it.2 A waived personal-jurisdiction defect, by contrast, is closed for good. That permanence explains why the timing rules earlier in this chapter are enforced so strictly.
No Sua Sponte Dismissal
Rule 12(b)(2) makes personal jurisdiction a defense that the defendant raises, which leaves the decision to raise it with the defendant.3 Suppose the defendant has already lost the defense by one of the routes traced earlier. May the judge act on the missing basis for jurisdiction anyway? A judge who acts without any party's motion acts sua sponte, on the court's own initiative, and the general answer is that the judge may not. Because personal jurisdiction defenses may be waived, courts are reluctant to dismiss for lack of personal jurisdiction sua sponte, in the absence of a motion.4 A court that has not been asked ordinarily has no reason to look, and a court that looks and then dismisses over a waived defense overrides a choice the defendant has already made.
In Uffner v. La Reunion Francaise, the defendants moved to dismiss on other grounds and never objected to personal jurisdiction, yet the district court raised the point itself and resolved the case on that basis.5 The appellate court reversed. Once a party has waived the defense of lack of personal jurisdiction, the court may not raise the issue on its own in ruling on a motion to dismiss.6 The court also confirmed that the waiver was real: nothing showed that the defense had been unavailable to the defendants when they responded, and they had not merely mislabeled an argument that raised personal jurisdiction in substance under another heading.7
Three reasons support that holding, and each rests on a different feature of the situation. The first concerns the court's role. A court can acquire personal jurisdiction through a voluntary appearance and responsive pleadings filed without objection, so a court facing defendants who have appeared and defended has no independent reason to visit the issue.8 That sets the defense apart from subject-matter jurisdiction, which the court must inquire into whether or not anyone objects.9 The second reason concerns the plaintiff, who has had no chance to respond to an issue that neither side raised. Had the defendant moved, the plaintiff could have answered with facts about the defendant's forum contacts, and a surprise dismissal takes that chance away.10 The third reason concerns the Rules themselves, because the prohibition promotes the purpose of Rules 12(g) and 12(h).11 Those rules require the defendant to put forward threshold objections in one round at the start, and a judge who revives a waived defense reopens a question the Rules closed.
In Hunter v. Serv-Tech, Inc., the court held that Offshore had waived personal jurisdiction and declined to consider the parties' arguments about minimum contacts.12 It added that, from the briefs, defending the suit appeared to be Offshore's only contact with the forum, though it expressly did not decide the issue.13 Offshore pressed the contacts question and the court refused to reach it. In Uffner no one pressed it, the district court ruled anyway, and the court of appeals reversed. In both cases waiver removes the contacts question from the case, whichever side might gain from an answer.
Two settings fall outside the general reluctance, and neither involves a defendant who has appeared and consented by omission. A court may consider personal jurisdiction on its own when it screens a claim brought by an in forma pauperis litigant, meaning an indigent litigant who qualifies for a waiver of court fees, because the court's authority under 28 U.S.C. § 1915 reaches the question. The Tenth Circuit, in Trujillo v. Williams, held that a court can dismiss sua sponte under that statute where personal jurisdiction is lacking.14 The second setting arises when a plaintiff asks for a default judgment against a defendant who never appeared. The Ninth Circuit said in In re Tuli: "[W]hen a court is considering whether to enter a default judgment, it may dismiss an action sua sponte for lack of personal jurisdiction."15 A defendant who has made no Rule 12 filing has waived nothing, and no one is present to raise the objection. A default judgment entered without any check would bind a defendant who never consented.
An exam stem in which a judge dismisses for lack of personal jurisdiction with no motion pending therefore turns on one fact: has the defendant appeared? If the defendant filed a Rule 12 motion or an answer that left the objection out, the defense is waived and the dismissal is error. If the defendant never appeared and the plaintiff seeks a default judgment, or if the court is screening an indigent litigant's complaint, the court may look into jurisdiction itself.
No Later Collateral Attack
Rule 12(b)(2) lets a defendant ask the court hearing the case to dismiss for lack of personal jurisdiction, and a challenge raised there is a direct attack.17 The same objection can surface in a different proceeding, most often one in which the plaintiff holds a judgment from one court and asks another to enforce it. A challenge to the first court's jurisdiction raised in that second proceeding is a collateral attack. It is open only to a defendant who ignored the original action entirely, took a default judgment, and then challenged that judgment as rendered without personal jurisdiction.18
Personal jurisdiction can support such an attack because full faith and credit does not require a court to recognize a judgment rendered by a court that lacked jurisdiction over the defendant.19 That exception is why the defendant's choices in the original case matter so much. The law gives the defendant one chance to contest jurisdiction, either in the original action or in the enforcement action, and it refuses a second chance in the court the defendant did not choose first. Three postures come out differently.
The first posture is the defendant who appears and defends on the merits without ever objecting to jurisdiction. Rule 12 treats that silence as a waiver, so the defense is gone in the original court, and it is gone in the enforcement action too. The raise-it-or-lose-it rule forces the defendant to assert the objection, or to default, before the court invests time in the merits. A defendant who could hold the objection back, try to win in the forum, and then claim after losing that the forum never had power would be sandbagging both the court and the plaintiff, and the enforcing court will enforce the judgment.20
The second posture is the defendant who raises the objection on time and loses. By appearing to contest jurisdiction, that defendant submits the question to the court, and the court's decision is res judicata on the issue in any further proceedings.21 The result holds even if the defendant then abandons the merits and takes a default judgment, because the jurisdictional question was actually litigated and decided in the first case.22 A finding of fact carries the same force: a ruling that the defendant was served inside the forum is issue-preclusive, and full faith and credit carries it into any enforcement action in another state.23 Baldwin v. Iowa State Traveling Men's Association is the case usually cited for this one-bite principle: the plaintiff should not have to prove the court's power twice, and the defendant should not be able to keep raising the issue until some court agrees.24
A defendant who objected and lost still has a direct route. The defendant defends on the merits, which does not waive the objection, and appeals the adverse jurisdictional ruling after final judgment.25 Federal appeals ordinarily lie only from final judgments, so review in the middle of the case, through a certified interlocutory appeal or mandamus, is reserved for extraordinary cases.26 Direct appeal is the only further review available, and the defendant cannot default and then attack the judgment collaterally.27 The defendant who loses the jurisdictional motion therefore chooses between litigating the merits and appealing later, or defaulting and accepting the ruling as final.28
The third posture is the defendant who never appears at all. That defendant may ignore the suit, risk a default judgment, and raise the jurisdictional objection in the enforcement action.29 The objection is still open because no earlier court ever actually decided it, so no ruling binds the defendant.30 The enforcing court may reexamine the rendering court's jurisdiction, but it may not reopen the merits. If it finds that jurisdiction existed, it enforces the default judgment, and the defendant has lost the chance to defend the claim in either court.31 The insurer in McGee v. International Life Insurance Co. ignored the original California suit, and the California judgment was later held enforceable in Texas, which is the price of guessing wrong.32
The merits stay closed because of what the alternative would do to the plaintiff's choice of forum. If a defendant could ignore the original suit and litigate the substance in the enforcement action, the plaintiff's selection of a forum would give way to the defendant's right to litigate at home.33 The rule instead gives the defendant a right to stay away when the court lacks jurisdiction and no such right when it has jurisdiction.34 A defendant who guesses right sees the enforcing court refuse to give the judgment effect, and the plaintiff cannot collect. A defendant who guesses wrong has bet on an educated guess about jurisdiction and lost the entire case. That risk is why a defendant with a serious objection usually does better presenting it in the original court.35
An exam problem set in an enforcement action therefore turns on one question: what did the defendant do in the original case? A defendant who answered, or who moved on other grounds without the objection, has waived it. A defendant who moved under Rule 12(b)(2) and lost is bound by the ruling and may appeal after final judgment. Only a defendant who stayed out entirely may be heard on the objection, and that defendant loses everything if the enforcing court finds that the original court had jurisdiction.