Also known as: 12(b)(2) · Rule 12(b)(2) motion · FRCP 12(b)(2) · lack of personal jurisdiction · personal jurisdiction defense
Written by attorneys — see sources below.
A procedural device by which a defendant asserts that the court lacks authority to exercise personal jurisdiction over the defendant. The motion must be raised at the outset of the case or the defense is forfeited under the consolidation and waiver provisions of the Federal Rules.
Ravi Reddy, a resident of State A, sues Rocky Mountain Mining in the District of State B for breach of a supply contract. The mining company has no offices, employees, or sales in State B. Rocky Mountain Mining files a pre-answer motion asserting that the court cannot exercise personal jurisdiction over it.
Riley Rivera, injured in State C, sues an out-of-state insurer in State C court. The insurer appears and immediately moves to dismiss, contending that its limited policy sales in State C do not create the required relationship with the plaintiff's claim.
Respondent Compagnie des Bauxites de Guinée is a Delaware corporation. Its principal place of business is in the Republic of Guinea, where it operates bauxite mines and processing facilities. Forty-nine percent of its stock is owned by the Republic of Guinea. The remaining fifty-one percent is owned by Halco (Mining) Inc., a Pennsylvania company that contracted to procure insurance for CBG. In 1973, Halco instructed broker Marsh & McLennan to obtain $20 million in business interruption coverage. The first $10 million was placed with Insurance Company of North America. The excess $10 million was placed through Bland Payne in the London market with 21 foreign insurers. Fourteen of those insurers are petitioners here. The placing slip was initialed effective February 12, 1974. The excess insurers adopted the INA policy terms. After CBG allegedly suffered mechanical problems causing more than $10 million in losses, it filed a two-count diversity action in the Western District of Pennsylvania in December 1975. CBG named INA on the first count and the excess insurers on the second count. The excess insurers answered by asserting lack of in personam jurisdiction. They later moved for summary judgment on that ground. CBG served its first document request in August 1976. The request sought copies of all business interruption policies issued between 1972 and 1975. After objections and motions to compel, the district court overruled the objections in June 1978. The court later narrowed the request to policies delivered in or covering risks in Pennsylvania. Petitioners stated the documents were held by London brokers. The court ordered them to request the files and gave successive extensions through November 1978. On December 21, 1978, after petitioners offered only to make four million files available in London, the district court warned that failure to produce the information within 60 days would result in an order under Rule 37(b)(2)(A) assuming jurisdiction. On April 19, 1979, the court found the material had not been produced and entered the sanction. It also made independent findings of jurisdiction under the Pennsylvania long-arm statute and by implicit consent through adoption of the INA contract. The Court of Appeals for the Third Circuit affirmed the jurisdictional holding as to all but three excess insurers. It relied solely on the validity of the Rule 37 sanction. The Supreme Court granted certiorari because the decision conflicted with Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134 (CA5 1980).
View caseRebecca Ross files a defamation action in State D against a national magazine whose only connection to the state is occasional circulation. The magazine responds with a motion to dismiss, arguing that the claim does not arise from any purposeful contact with State D.
Kathy Keeton, a resident of New York who assists in producing a magazine bearing her name in several places crediting her with editorial and other work, sued Hustler Magazine, Inc., an Ohio corporation with its principal place of business in California, in the United States District Court for the District of New Hampshire. She alleged jurisdiction by reason of diversity of citizenship and claimed to have been libeled in five separate issues of the magazine published between September 1975 and May 1976. Prior to the New Hampshire action, Keeton had initially brought suit for libel and invasion of privacy in Ohio, where the magazine was published, but her libel claim was dismissed as barred by the Ohio statute of limitations and her invasion-of-privacy claim was dismissed as barred by the New York statute of limitations. Hustler Magazine's contacts with New Hampshire consist of the sale of some 10,000 to 15,000 copies of the magazine in that State each month. Keeton's only connection with New Hampshire is the circulation there of copies of the magazine that she assists in producing. The District Court dismissed her suit because it believed that the Due Process Clause of the Fourteenth Amendment forbade the application of New Hampshire’s long-arm statute to acquire personal jurisdiction over the respondent. The Court of Appeals for the First Circuit affirmed the dismissal in 1982. The Court of Appeals observed that the single publication rule would require awarding damages caused in all states. It also stressed New Hampshire’s unusually long six-year limitations period for libel actions. New Hampshire was the only State where the suit would not have been time-barred when filed in October 1980. The Supreme Court granted certiorari in 1983.
View caseRalph Richardson, a resident of State E, is served with a support petition in State F where his former spouse now lives. He moves to dismiss, asserting that his only contacts with State F are unrelated to the support obligation.
Ezra Kulko married Sharon Kulko Horn in 1959 during a three-day stopover in California while en route from a military base in Texas to Korea. Both parties were New York domiciliaries who returned to New York after the marriage and Ezra's service. Their children Darwin and Ilsa were born in New York in 1961 and 1962. The family lived together in New York City until their separation in March 1972. Following the separation, Sharon moved to San Francisco, California. In September 1972, Sharon flew to New York to sign a separation agreement providing that the children would spend school years with their father and vacations with their mother in exchange for $3,000 annual child support payments during her custody periods. Sharon obtained a Haitian divorce incorporating the agreement and returned to California, where she remarried. The children resided with their father during the school year until December 1973, when Ilsa remained in California after her father bought her a one-way ticket. In January 1976 Darwin flew to California using a ticket sent by his mother. Less than one month after Darwin's arrival, Sharon commenced an action in California Superior Court to establish the Haitian divorce decree as a California judgment, modify it to award her full custody, and increase the father's child-support obligations. Ezra appeared specially and moved to quash service on the ground that he lacked sufficient minimum contacts with California. The trial court denied the motion. The Court of Appeal affirmed. The California Supreme Court sustained the rulings in a 4-2 decision before Ezra appealed to the United States Supreme Court.
View caseRiverfront Developments sues a foreign central bank in federal court for breach of a letter of credit. The bank files a Rule 12(b)(2) motion, contending that the commercial-activity exception does not reach the transaction at issue.
On April 21, 1975, the Federal Republic of Nigeria and Verlinden B.V., a Dutch corporation with its principal offices in Amsterdam, the Netherlands, entered into a contract providing for the purchase of 240,000 metric tons of cement by Nigeria. The parties agreed that the contract would be governed by the laws of the Netherlands and that disputes would be resolved by arbitration before the International Chamber of Commerce in Paris, France. The contract required the Nigerian Government to establish an irrevocable, confirmed letter of credit for the total purchase price through Slavenburg’s Bank in Amsterdam. According to Verlinden’s amended complaint, the Central Bank of Nigeria, an instrumentality of Nigeria, improperly established an unconfirmed letter of credit payable through Morgan Guaranty Trust Co. in New York. Verlinden subcontracted with a Liechtenstein corporation, Interbuco, to purchase the cement needed to fulfill the contract. In mid-September 1975, Central Bank unilaterally directed its correspondent banks, including Morgan Guaranty, to adopt a series of amendments to all letters of credit issued in connection with the cement contracts and directly notified the suppliers that payment would be made only for those shipments approved by Central Bank two months before their arrival in Nigerian waters. Verlinden sued Central Bank in the United States District Court for the Southern District of New York, alleging that Central Bank’s actions constituted an anticipatory breach of the letter of credit. Verlinden asserted jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330. Respondent moved to dismiss for lack of subject-matter and personal jurisdiction. The District Court held that a federal court may exercise subject-matter jurisdiction over a suit brought by a foreign corporation against a foreign sovereign, but after considering each of the exceptions to immunity upon which Verlinden relied, the court concluded that none applied and dismissed the action. The Court of Appeals for the Second Circuit affirmed on different grounds, agreeing that the Act permitted actions by foreign plaintiffs but holding that the Act exceeded the scope of Article III. The Supreme Court granted certiorari.
View caseRoberto Reyes, a Nevada resident, is sued in California by a California plaintiff who alleges injury from an encounter that began in Nevada. Reyes moves to dismiss, arguing that his contacts with California are unrelated to the claim.
In August 2006, petitioner Anthony Walden, a Georgia police officer serving as a deputized Drug Enforcement Administration agent at the Atlanta airport, received notification from a San Juan airport official about respondents Gina Fiore and Keith Gipson. Fiore and Gipson, professional gamblers with residences in California and Nevada, had been searched by Transportation Security Administration agents at the San Juan airport in Puerto Rico, where nearly $97,000 in cash was discovered in their carry-on bags. Upon their arrival in Atlanta for a connecting flight to Las Vegas, Walden and another agent approached Fiore and Gipson at the departure gate. After questioning them about the cash, which they described as their gambling bank and winnings, Walden conducted a drug-sniffing dog test and seized the funds, advising that the money would be returned upon proof of a legitimate source. After the seizure, Walden helped draft an affidavit to establish probable cause for forfeiture of the funds and forwarded it to a United States Attorney’s Office in Georgia. Respondents later alleged that this affidavit contained false and misleading statements, including misrepresentations about the airport encounter and omissions of exculpatory information regarding the absence of drug evidence and the legitimate origins of the funds. No forfeiture complaint was ultimately filed, and the DEA returned the funds to respondents in March 2007. Respondents then filed a tort suit against Walden in the United States District Court for the District of Nevada, alleging violations of their Fourth Amendment rights under Bivens v. Six Unknown Fed. Narcotics Agents. The District Court dismissed the suit for lack of personal jurisdiction. The Ninth Circuit reversed. The Supreme Court granted certiorari.
View caseA defendant must raise lack of personal jurisdiction in the first pre-answer motion or in the answer if no pre-answer motion is filed. Failure to do so waives the defense under Rules 12(g) and 12(h).
Supporting sources
Yes. A defendant who timely files and loses a Rule 12(b)(2) motion may proceed to the merits and still appeal the jurisdictional ruling after final judgment.
No. Once the defendant files an answer without asserting the defense, the objection is waived and the court may not dismiss on that ground sua sponte.
The omitted defense is waived and cannot be raised later in the answer or by separate motion.
Supporting sources