At Least Listen To Us Now – Waiver & Personal Jurisdiction

As soon as Daimler AG v. Bauman, 571 U.S. 117 (2014), we made a point of warning defendants that personal jurisdiction was waivable. Waiver was in the second paragraph of our Bauman Personal Jurisdiction In-House Counsel Checklist - before the checklist itself:

Personal jurisdiction defenses, however, are waivable. They have to be pleaded and asserted at the outset of the litigation, or else the other side will argue - more persuasively, the more time that has passed - that a defendant has slept on its rights while other parties and the judicial system itself have expended valuable time and effort litigating in the plaintiffs' forum of choice. Thus, corporate defendants have to act quickly to evaluate and raise Bauman-based jurisdictional defenses at the outset of the case.

But just suppose that somebody didn't listen to us. Perhaps not recognizing the significant changes in personal jurisdiction practice (if not necessarily in constitutional Due Process doctrine itself) wrought by Bauman and Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), a defendant might not plead a personal jurisdiction defense, thinking it futile - as indeed it likely was under prior practice in most places. Or even if personal jurisdiction was one of those 28 boilerplate defenses included at the end of every answer to a complaint, perhaps the defendant didn't file a motion to dismiss under Fed. R. Civ. P. 12(b)(1) at the outset of the litigation....

Now the defendant has seen the light and wants to raise personal jurisdiction as a potentially dispositive defense (in the current forum, anyway). Plaintiff raises waiver. Is the defendant out of luck?

It's not a good situation to be in, but it's not hopeless, at least not in all jurisdictions. Today we're discussing arguments against waiver that have succeeded in Bauman/BMS personal jurisdiction decisions.

In Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014), decided not long after Bauman, the plaintiffs' waiver argument failed even though the defendant "appeared in the district court and did not argue there that the court lacked personal jurisdiction." Id. at 135. In between Bauman was decided. "While arguments not made in the district court are generally waived, a party cannot be deemed to have waived objections or defenses which were not known to be available at the time they could first have been made." Id. (citations and quotation marks omitted). Bauman's enforcement of the "at home" test for general jurisdiction meant that the world had changed:

[A] defendant does not waive a personal jurisdiction argument − even if he does not make it in the district court − if the "argument that the court lacked...