Scott Gerber v. James Riordan

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0225p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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SCOTT D. GERBER,
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Plaintiff-Appellant,
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No. 09-3790
v.
,
>
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JAMES C. RIORDAN and SEVEN LOCKS PRESS

Defendants-Appellees. -
CORP.,
-
N
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 06-01525—James G. Carr, District Judge.
Decided and Filed: August 18, 2011
Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

_________________

COUNSEL
ON BRIEF: Timothy G. Pepper, TAFT STETTINIUS & HOLLISTER LLP, Dayton,
Ohio, for Appellant.
CLAY, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.
MOORE, J. (pp. 11-19), delivered a separate concurring opinion.

_________________

OPINION
_________________

CLAY, Circuit Judge. Plaintiff Scott Gerber filed this diversity of citizenship
action pursuant to 28 U.S.C. § § 1291 and 1332 against Defendants James Riordan and
Seven Locks Press Corp., alleging breach of contract and common law tort causes of
action. The court below dismissed the action for lack of personal jurisdiction over
Defendants. Plaintiff now appeals.

1
No. 09-3790 Gerber v. Riordan, et al. Page 2

For the reasons stated below, we REVERSE the decision of the court below, and
REMAND the case for further proceedings.

STATEMENT OF FACTS

I. Factual Background

This case arises out of a lawsuit filed by Plaintiff Scott Gerber (“Plaintiff”)
against Defendants James Riordan (“Riordan”) and Seven Locks Press Corp. (“Seven
Locks Press,” collectively “Defendants”), alleging breach of contract and common law
tort causes of action.

Plaintiff is a faculty member at Ohio Northern University’s Claude W. Pettit
College of Law, and an Ohio resident. However, in contracting with Defendants for
publication of his manuscript, Plaintiff listed his address as “4302 Chesapeake Avenue,
Hampton, Virginia, 23669.” (R. 6-1 at 1.) Defendant Seven Locks Press is a
corporation incorporated under Nevada law, doing business in California. Seven Locks
Press’ address is listed as “3100 W. Warner Avenue #8, Santa Ana, California 92704.”
(Id.)

In June 2005, Plaintiff and Defendant Seven Locks Press entered into a contract
(the “contract”) to publish Plaintiff’s manuscript. Defendant Riordan, publisher of
Seven Locks Press, acted as Seven Locks Press’ agent in negotiating and entering into
the contract with Plaintiff. The contract initially required publication of Plaintiff’s
manuscript within 120 days of the date of the contract, (id. at 3), which Plaintiff alleges
in his complaint was “on or about October 10, 2005.” (R. 6, Am. Compl. at 3.) The
contract also required Plaintiff to pay Seven Locks Press a publication subsidy of
$11,500.00. (Id.) Plaintiff alleges that he paid Seven Locks Press the agreed upon
subsidy in November 2005. (Id.)

In November 2005, the parties amended the contract, and delayed the publication
date to early February 2006. Plaintiff alleges that even after publication was delayed,
Defendants failed to publish Plaintiff’s manuscript in a timely fashion.
No. 09-3790 Gerber v. Riordan, et al. Page 3

II. Procedural History

Plaintiff filed the instant action against Defendants on June 20, 2006 in the
United States District Court for the Northern District of Ohio based on the parties’
diversity of citizenship, and an amount in controversy exceeding $75,000.00. See
28 U.S.C. §§ 1291 and 1332. In his amended complaint, Plaintiff seeks relief for
Defendants’ breach of contract; interference with a contract and prospective advantage;
defamation; intentional or reckless infliction of emotional distress; negligent infliction
of emotional distress; misrepresentation; and fraud. After filing his complaint, but prior
to receiving any responsive pleading from Defendants, Plaintiff filed an amended
complaint; a motion to stay litigation in favor of mediation in Toledo, Ohio; and an
application to the court for entry of default judgment against Defendants. Proceeding
pro se, Defendants filed a motion to dismiss the amended complaint for lack of personal
jurisdiction.

After directing Defendants to show cause why default judgment should not be
entered against them for failure to secure an attorney to represent corporate Defendant
Seven Locks Press as required by 28 U.S.C. § 1654, see also Bristol Petroleum Corp.
v. Harris, 901 F.2d 165, 166 n.1 (D.C. Cir. 1990) (“a corporation . . . [may] not appear
pro se”), the district court entered a default judgment against Defendants on October 16,
2006.

Subsequently, Defendants retained an attorney who entered a general appearance
with the district court on Defendants’ behalf. Through their attorney, Defendants made
motions to stay the litigation pending arbitration, and to vacate the default judgment
entered against them. The district court granted both of Defendants’ motions on
December 8, 2006. Defendants also filed an opposition to Plaintiff’s motion for
mediation in Toledo, Ohio.

The parties appeared at a case management conference with the district court on
June 19, 2007. On June 21, 2007, the district court ordered that discovery in the case be
completed by January 31, 2008; dispositive motions submitted by November 11, 2007;
opposition to dispositive motions submitted by November 30, 2007; and replies
No. 09-3790 Gerber v. Riordan, et al. Page 4

submitted by December 15, 2007. The parties also consented to the magistrate judge’s
jurisdiction for all purposes, including the entry of judgment. This case was
subsequently reassigned from the district judge to a magistrate judge. The court
scheduled a settlement conference for February 25, 2008, and a jury trial before the
magistrate judge for March 18, 2008, with voir dire set for March 17, 2008.

After the June 19, 2007 case management conference, Defendants made a motion
for an extension of time until July 9, 2007 to file its Rule 26 discovery responses.
Defendants subsequently withdrew this motion, and submitted their Rule 26 discovery
responses on June 9, 2007.

The district court held an additional pretrial conference on June 17, 2007, which
Defendants’ counsel attended in person, and which Defendant Riordan attended by
telephone. The district court also stayed litigation pending mediation as contemplated
by the parties’ contract.

After participating in the above-described proceedings, on April 1, 2009,
Defendants filed a motion to dismiss for lack of personal jurisdiction, arguing that their
contacts with Ohio were insufficient to support personal jurisdiction over them in that
forum. The magistrate judge granted Defendants’ motion on May 28, 2009, and
dismissed the action for lack of personal jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(2).

Plaintiff timely appealed.

DISCUSSION

I. Standard of Review

“We review de novo a district court’s dismissal of a complaint for lack of
personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure.”
Bird v. Parsons, 289 F.3d 865, 971 (6th Cir. 2002); see also Calphalon Corp. v.
Roulette, 228 F.3d 718, 721 (6th Cir. 2000).
No. 09-3790 Gerber v. Riordan, et al. Page 5

II. Analysis

“Personal jurisdiction can be either general or specific, depending upon the
nature of the contacts that the defendant has with the forum state.” Id. at 873. This
Court has explained the difference between these two types of jurisdiction as follows:
“General jurisdiction is proper only where a defendant’s contacts with the forum state
are of such a continuous and systematic nature that the state may exercise personal
jurisdiction over the defendant even if the action is unrelated to the defendant’s contacts
with the state.” Id. Specific jurisdiction, however, is proper only “in a suit arising out
of or related to the defendant’s contacts with the forum.” Id. at 874.

In this case, Plaintiff concedes that Defendants’ contacts with Ohio are
insufficient to support general jurisdiction in that forum. Ordinarily, in the absence of
general jurisdiction, the only question before the Court is whether the district court had
personal jurisdiction over Defendants based on specific jurisdiction. An exception to
this rule occurs when a party fails to assert, or waives its general jurisdiction defense by,
for example, entering a general appearance with the district court. See Calphalon, 228
F.3d at 721. It is with this exception that we deal in this case.

In a diversity case, such as the instant action, this Court uses a two part test to
ascertain whether the district court has personal jurisdiction over a defendant. See, e.g.,
id. at 721; CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996). “The
exercise of personal jurisdiction is valid only if it meets both the state long-arm statute
and constitutional due process requirements.” Calphalon, 228 F.3d at 721.

Ohio’s long-arm statute states in relevant part:
A court may exercise personal jurisdiction over a person who acts
directly or by an agent, as to a cause of action arising from the person’s:
(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this
state;
(3) Causing tortious injury by an act or omission in
this state;
...
No. 09-3790 Gerber v. Riordan, et al. Page 6

(6) Causing tortious injury in this state to any person
by an act outside this state committed with the
purpose of injuring persons, when he might
reasonably have expected that some person would
be injured thereby in this state.

Ohio Rev. Code § 2307.382(A). Although we “have recognized that Ohio’s long-arm
statute is not coterminous with federal constitutional limits,” Bird, 289 F.3d at 871, our
jurisprudence analyzing personal jurisdiction under Ohio law has nevertheless done so
with reference to the limits of federal constitutional due process. See id. Specifically,
this Court has “consistently focused on whether there are sufficient minimum contacts
between the nonresident defendant and the forum state so as not to offend traditional
notions of fair play and substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945)).

Under this Court’s due process jurisprudence, “[s]pecific jurisdiction over
[Defendants] is permissible only if their contacts with Ohio satisfy the three-part test that
this [C]ourt established in Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d
374, 381 (6th Cir. 1968).” Id. at 874. As this Circuit has previously stated,

First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities
there. Finally, the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant reasonable.

Calphalon, 228 F.3d at 721 (quoting S. Mach. Co., 401 F.2d at 381).

However, setting forth the constitutional requirements for a court’s exercise of
personal jurisdiction over a defendant does not necessarily end our inquiry. Rather,
because “the requirement of personal jurisdiction flows from the Due Process Clause and
protects an individual liberty interest,” Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899,
905 (6th Cir. 2006), “an individual may submit to the jurisdiction of the court by
appearance.” Ins. Corp. of Ireland, LTD v. Compagnie des Bauxite de Guinea, 456 U.S.
694, 703 (1982). In so doing, a defendant would waive his potential personal
No. 09-3790 Gerber v. Riordan, et al. Page 7

jurisdiction defense. As we have explained, “[t]he requirement that a court have
personal jurisdiction is a due process right that may be waived either explicitly or
implicitly. The actions of the defendant may amount to a legal submission to the
jurisdiction of the court.” Days Inn, 445 F.3d at 905; see also Fed. R. Civ. P 12(h)(1)
(stating that “[a] party waives any defense listed in Rule 12(b)(2)-(5),” including the
defense of lack of personal jurisdiction, by “failing to either: (i) make it by motion under
this rule; or (ii) include it in a responsive pleading.”).

In this case, Defendants initially responded to Plaintiff’s complaint by filing a
pro se motion to dismiss for lack of personal jurisdiction, which the district court
rejected for reasons unrelated to the motion’s merits. However, prior to renewing their
motion to dismiss for lack of personal jurisdiction on April 1, 2009, Defendants
participated in the litigation of this case as follows: (1) Defendants secured the services
of an attorney who entered an appearance with the district court on behalf of Defendants
on October 16, 2006; (2) Defendants filed a motion to stay litigation pending arbitration
on October 31, 2006; (3) Defendants filed a motion to vacate the default judgment
entered against Defendants on November 1, 2006; (4) Defendants filed an opposition to
Plaintiff’s motion for mediation in Toledo, Ohio on December 21, 2006; (5) Defendants
participated in a case management conference with the district court on June 19, 2007;
(6) Defendants filed a motion for an extension of time until July 9, 2007 to file their Rule
26 discovery responses on July 3, 2007, a motion which Defendants subsequently
withdrew on July 6, 2007; (7) Defendants made a motion to enforce a settlement
agreement on July 6, 2007, which Defendants subsequently withdrew on March 3, 2009;
(8) Defendants made their Rule 26 discovery responses on July 9, 2007; and
(9) Defendants participated in a pretrial conference held by the district court on June 17,
2007.

In deciding whether Defendants waived their personal jurisdiction defense, we
must determine whether any of Defendants’ appearances and filings in the district court
constituted “legal submission to the jurisdiction of the court.” Days Inn, 445 F.3d at
905. As an initial matter, we note that while “the voluntary use of certain [district] court
No. 09-3790 Gerber v. Riordan, et al. Page 8

procedures” serve as “constructive consent to the personal jurisdiction of the [district]
court,” Compagnie des Bauxite de Guinea, 456 U.S. at 704, not all do. See Mobile
Anesthesiologists Chicago, LLC v. Anesthesia Associates of Houston Metroplex, P.A.,
623 F.3d 440, 443 (7th Cir. 2010). Only those submissions, appearances and filings that
give “[P]laintiff a reasonable expectation that [Defendants] will defend the suit on the
merits or must cause the court to go to some effort that would be wasted if personal
jurisdiction is later found lacking,” id. at 443, result in waiver of a personal jurisdiction
defense.

There is a dearth of caselaw both in this Circuit, and in our sister circuits,
defining precisely what types of appearances and filings qualify as “a [defendant’s]
legal submission to the jurisdiction of the court,” Days Inn, 445 F.3d at 905, and give a
“plaintiff a reasonable expectation that it will defend the suit on the merits.” Mobile
Anesthesiologists, 623 F.3d at 443. Thus, we take this opportunity to discuss some of
the contours of this area of the law.

Although at the end of the day we find that Defendants did waive their personal
jurisdiction defense when their attorney entered a general appearance with the district
court, not all of Defendants’ actions participating in the instant litigation were sufficient
to signal Defendants’ voluntary submission to the district court’s jurisdiction. Thus, not
all of Defendants’ filings could themselves constitute a waiver of Defendants’ personal
jurisdiction defense.

Defendants did not accede to the district court’s jurisdiction in moving to stay
the litigation pending arbitration. As we discussed above, “[t]o waive or forfeit a
personal jurisdiction defense, a defendant must give a plaintiff a reasonable expectation
that it will defend the suit on the merits or must cause the court to go to some effort that
would be wasted if personal jurisdiction is later found lacking.” Id. A motion to stay
litigation signals only that a defendant wishes to postpone the court’s disposition of a
case. Far from indicating that a defendant intends to defend a suit on the merits, a
motion to stay can serve to indicate the opposite – that a defendant intends to seek
alternate means of resolving a dispute, and avoid litigation in that jurisdiction.
No. 09-3790 Gerber v. Riordan, et al. Page 9

Therefore, Defendants’ motion for a stay “does not come close to what is required for
waiver or forfeiture” of a personal jurisdiction defense. Id.; see also Lane v. XYZ
Venture Partners, L.L.C., 332 F. App’x 675, 678 (11th Cir. 2009) (holding that
defendants “did not waive their defense of lack of personal jurisdiction by moving to
stay the proceedings”).

Similarly, Defendants’ motion to vacate the default judgment, without more,
would not have resulted in a waiver of their personal jurisdiction defense. We have held
that a personal jurisdiction defense is not waived when a party makes a special
appearance solely to contest personal jurisdiction’s existence. See Calphalon, 228 F.3d
at 721 (citing Fed. R. Civ. P. 12(b)(2)). This is so because by appearing solely to contest
jurisdiction, a defendant clearly indicates that he is not willing to submit to the district
court’s jurisdiction. By the same token, we have held that “defects in personal
jurisdiction are not waived by default when a party fails to appear or to respond . . . until
after the default judgment was entered.” Reynolds v. Int’l Amateur Athletic Fed’n,
23 F.3d 1110, 1121 (6th Cir. 1994) (holding that a defendant did not waive his personal
jurisdiction defense by moving to vacate a default judgment). Therefore, because
moving to vacate a default judgment is not an indication that a defendant is submitting
to the jurisdiction of the district court for disposition of a suit’s merits, Defendants did
not waive their personal jurisdiction defense by moving to vacate the district court’s
entry of a default judgment.

Nevertheless, it is clear that Defendants’ filing of a general appearance with the
district court constituted a voluntary acceptance of the district court’s jurisdiction, and
therefore, a waiver of Defendants’ personal jurisdiction defense. We have held that
“Under [Federal Rule of Civil Procedure] 12(h), a party waives the right to contest
personal jurisdiction by failing to raise the issue when making a responsive pleading or
a general appearance.” Id. at 1120; accord Baragona v. Kuwait Gulf Link Transp. Co.,
594 F.3d 852, 854 (11th Cir. 2010) (“A defendant normally . . . waives a personal
jurisdiction defense if he or she has entered an appearance.”); Ladder Man, Inc. v. Mfr.’s
Distrib. Serv., Inc., No. 99-4217, 2000 U.S. App. LEXIS 27982, at *7 (6th Cir. Oct. 31,
No. 09-3790 Gerber v. Riordan, et al. Page 10

2000) (table). Therefore, Defendants’ attorney’s entry of a general appearance with the
district court on behalf of Defendants on October 16, 2006 constituted a waiver of
Defendants’ personal jurisdiction defense.

CONCLUSION

Defendants waived their lack of personal jurisdiction defense, and voluntarily
submitted to the district court’s jurisdiction, when their attorney entered a general
appearance with the district court on their behalf. Accordingly, we REVERSE the
decision of the court below, and REMAND the case for further proceedings consistent
with this opinion.
No. 09-3790 Gerber v. Riordan, et al. Page 11

___________________

CONCURRENCE
___________________

KAREN NELSON MOORE, Circuit Judge, concurring. I agree with the
majority that the defendants have waived any challenge to personal jurisdiction through
their participation in the proceedings below. I also agree that the key question in this
case is when the defendants gave an indication that they intended to defend this suit on
the merits. See Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston
Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010). I disagree, however, with the
majority’s conclusion that the critical point here was the defendants’ counsel’s filing of
an Entry of Appearance—a one-sentence announcement of the identity of the
defendants’ attorney of record. In my view, the defendants consented to the personal
jurisdiction of the district court when they filed a motion to enforce a settlement
agreement that the defendants believed was valid at that time. Perhaps more
importantly, however, I believe that the holding of the majority is unwise; in light of the
facts of this case, a formalistic, one-sentence notice of appearance as counsel simply
cannot amount to a waiver of the right to file a motion to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2). I therefore concur in the
judgment only.

I. THE MAJORITY ADOPTS A NEW TEST FOR WAIVER
OF PERSONAL-JURISDICTION DEFENSES,
BUT THEN APPLIES THE OLD ONE.

Before the Federal Rules of Civil Procedure were adopted in 1938, a defendant
seeking to challenge the district court’s exercise of personal jurisdiction would make a
limited, or “special,” appearance before the court to lodge the objection. See, e.g.,
Harkness v. Hyde, 98 U.S. (8 Otto) 476, 478–79 (1878); see generally 5B CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 1344 (3d ed. 2011). This special appearance was
conceptually different from a “general” appearance, which was viewed as a sign that the
No. 09-3790 Gerber v. Riordan, et al. Page 12

defendant acknowledged the existence of personal jurisdiction and intended to defend
the action on the merits. See Goldey v. Morning News, 156 U.S. 518, 521 (1895) (stating
that personal jurisdiction can be acquired over the defendant “by his waiver, by general
appearance or otherwise”). “The term ‘general appearance’ historically applied to the
defendant’s submission of pleadings or motions, not limited to jurisdictional questions,
regardless of whether the defendant or the defendant’s attorney is physically present in
court.” 16-108 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE, § 108.53[2]
(3d ed. 2011).

Rule 12 changed the practices surrounding challenges to personal jurisdiction,
notably by ending reliance on the appearance doctrine. “Rule 12 . . . abolished for the
federal courts the age-old distinction between general and special appearances.” Orange
Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944) (en
banc). Acknowledging this, we have held that, “In order to object to a court’s exercise
of personal jurisdiction, it is no longer necessary to enter a ‘special appearance.’” Cty.
Sec. Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 483 (6th Cir. 2002); see also
Haile v. Henderson Nat’l Bank, 657 F.2d 816, 820 n.4 (6th Cir. 1981) (stating, with
respect to challenges to service of process, that “a ‘special appearance’ to challenge
[personal] jurisdiction is no longer necessary under the Federal Rules. A defendant must
attack the validity of service of process pursuant to Rule 12(b).”). On the other hand,
the term “general appearance” still appears in some cases in the context of personal-
jurisdiction challenges, although a precise definition of exactly what qualifies as a
general appearance is not provided. See Reynolds v. Int’l Amateur Athletic Fed’n, 23
F.3d 1110, 1120 (6th Cir. 1994) (“Under F.R.C.P. 12(h), a party waives the right to
contest personal jurisdiction by failing to raise the issue when making a responsive
pleading or a general appearance.”); Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
700 (6th Cir. 1978) (quoting Goldey, 156 U.S. at 521); see also 16-108 MOORE’S
FEDERAL PRACTICE § 108.53[2] (“The term [“general appearance”] is still widely used
to describe acts by the defendant sufficient to support jurisdiction, even in discussions
of jurisdiction in courts that have adopted the Federal Rules of Civil Procedure, which
No. 09-3790 Gerber v. Riordan, et al. Page 13

provide a waiver procedure instead of the appearance doctrine.”) (internal citation
omitted).

Rule 12(h)(1) now sets out the circumstances in which a challenge to personal
jurisdiction can be waived. According to the rule:

A party waives any defense listed in Rule 12(b)(2)-(5) by:

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of
course.

FED. R. CIV. P. 12(h)(1)(B). Such an inquiry is easy in most cases. One can look at the
defendant’s answer or pre-answer motion; either personal jurisdiction is raised or it isn’t.
Yet cases like the present one, in which numerous other issues are raised from the outset
of the case, can present a more difficult situation. Notwithstanding the absence of an
answer or pre-answer motion, a defendant can still waive a personal-jurisdiction
challenge by certain participation in the litigation. See Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxite de Guinee, 456 U.S. 694, 703 (1982); Days Inn Worldwide, Inc.
v. Patel, 445 F.3d 899, 905 (6th Cir. 2006).1

To assess whether such a waiver through participation in the litigation has been
made, several other circuits take a common-sense approach to determining whether a
party has waived a personal-jurisdiction challenge. All of these attempt to ensure
compliance with the spirit of Rule 12—“which is to expedite and simplify proceedings

1
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United
States v. Olano, 507 U.S. 725, 733 (1993). We have held that participation in litigation that results in the
loss of the right to challenge personal jurisdiction constitutes waiver, see Patel, 445 F.3d at 905 n.6, but
the Second Circuit has opted to describe this as forfeiture. In the Second Circuit’s view, “Where a
litigant’s action or inaction is deemed to incur the consequence of loss of a right, or, as here, a defense,
the term ‘forfeiture’ is more appropriate.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999).
Along with the Second Circuit, I believe that the term “forfeiture” is a more accurate description of a
defendant’s loss of the right to challenge personal jurisdiction, but I will use the term “waiver” in the
remainder of this opinion, consistent with our circuit’s established practice.
No. 09-3790 Gerber v. Riordan, et al. Page 14

in the Federal Courts,” Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (internal
quotation marks omitted)—when the letter of Rule 12 itself does not provide clear
guidance.2

Perhaps the best description of this approach comes from a Seventh Circuit case
cited by the majority, Mobile Anesthesiologists: “To waive or forfeit a personal
jurisdiction defense, a defendant must give a plaintiff a reasonable expectation that it
will defend the suit on the merits or must cause the court to go to some effort that would
be wasted if personal jurisdiction is later found lacking.” 623 F.3d at 443. The Seventh
Circuit has also asked whether the defendants’ actions “manifest[] an intent to submit
to the court’s jurisdiction” and whether they comply with “the spirit of” Rule 12(h) even
where they already comply with the letter of the rule. Continental Bank, N.A. v. Meyer,
10 F.3d 1293, 1297 (7th Cir. 1993). This straightforward description of the inquiry to
be undertaken has the advantage of ensuring that cases with atypical preliminary
pleading histories, such that the letter of Rule 12 is difficult to apply, are decided in a
manner that comports with the policy behind Rule 12(h). It also parallels the inquiry
undertaken in a related situation: determining whether a defendant’s purposeful
availment of a forum state—separate and apart from participation in the litigation at
issue—results in the existence of specific jurisdiction.3 As the Supreme Court recently
observed with respect to specific jurisdiction, “The principal inquiry in cases of this sort
is whether the defendant’s activities manifest an intention to submit to the power of a

2
For example, the Federal Circuit has advanced the notion that a personal-jurisdiction challenge
must be made “‘at the time the first significant defensive move is made[.]’” Rates Tech., Inc. v. Nortel
Networks Corp., 399 F.3d 1302, 1307 (Fed. Cir. 2005) (quoting 5C CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1391 (3d ed. 2004)). The Second Circuit has held that
forfeiture of personal jurisdiction may occur through both conduct and missed opportunities to litigate the
issue. Hamilton, 197 F.3d at 61. In Hamilton, the court faulted the defendants for failing to litigate
personal jurisdiction despite “four distinct opportunities to move to dismiss during [a] four-year interval.”
Id. Lastly, the D.C. Circuit has noted that even where Rule 12(h) cannot be applied literally, courts should
apply the rule’s “rationale—that defendants should raise such preliminary matters before the court’s and
parties’ time is consumed in struggle over the substance of the suit—where a defendant has engaged in
extensive post-default litigation without suggesting an infirmity in personal jurisdiction.” Democratic
Republic of Congo v. FG Hemisphere Assocs., LLC, 508 F.3d 1062, 1064 (D.C. Cir. 2007).
3
Personal jurisdiction can exist in two forms: specific jurisdiction and general jurisdiction. “In
contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of issues
deriving from, or connected with, the very controversy that establishes jurisdiction.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, – U.S. ----, 131 S. Ct. 2846, 2851 (2011) (internal quotation marks
omitted). We deal here only with specific jurisdiction.
No. 09-3790 Gerber v. Riordan, et al. Page 15

sovereign.” J. McIntyre Mach., Ltd. v. Nicastro, – U.S. —, 131 S. Ct. 2780, 2788 (June
27, 2011).

Unfortunately, although the majority states at the outset that it approves of this
type of inquiry, it does not go further and undertake it. Instead, it engages in a two-step
line of analysis that makes no mention of whether the defendants gave the plaintiffs “a
reasonable expectation that [they] will defend the suit on the merits” or whether the
defendants had “cause[d] the court to go to some effort that would be wasted if personal
jurisdiction is later found lacking.” First, the majority relies on a case mentioning (but
not explaining) the old (and abandoned) distinction between special and general
appearances. See Reynolds, 23 F.3d at 1120 (“Under F.R.C.P. 12(h), a party waives the
right to contest personal jurisdiction by failing to raise the issue when making a
responsive pleading or a general appearance.”). Then the majority states, without further
explanation, that the defendants filed a document that constitutes a general appearance,
thereby waiving any objections to personal jurisdiction. As explained below, this makes
no sense.

II. A ONE-SENTENCE NOTICE OF APPEARANCE OF
COUNSEL, FILED IN RESPONSE TO A COURT
ORDER, IS NOT RELEVANT TO RULE 12.

The defendants in this case filed numerous documents in the district court before
the April 1, 2009 motion to dismiss for lack of personal jurisdiction. These filings
included the following:

• October 16, 2006: Entry of appearance as counsel. (R. 22)
• October 30, 2006: Motion to stay pending arbitration. (R. 23)
• November 1, 2006: Motion to vacate the notice of default. (R. 24)
• July 3, 2007: Motion for an extension of time to file Rule 26
disclosures. (R. 40)
• July 6, 2007: Motion to enforce a settlement agreement. (R. 42)
• July 9, 2007: Initial disclosures. (R. 44)
No. 09-3790 Gerber v. Riordan, et al. Page 16

• March 27, 2009: Motion to withdraw the July 6, 2007 motion to
enforce a settlement agreement. (R. 65)

The majority picks the first of these filings: the Entry of Appearance filed by the
defendants’ attorney on October 16, 2006. Even insofar as the term “general
appearance” may be useful in this context as a short-hand way of referring to pleadings
or motions that “give a plaintiff a reasonable expectation that [the defendants] will
defend the suit on the merits or [that] cause the court to go to some effort that would be
wasted if personal jurisdiction is later found lacking,” Mobile Anesthesiologists, 623
F.3d at 443, I do not believe that the Entry of Appearance filed in this case falls within
this concept. This Entry of Appearance document is a one-page—indeed, one-
sentence—pro forma notice of appearance of counsel. In its entirety, it reads: “Now
comes Richard M. Kerger and enters his appearances [sic] as counsel for defendants,
James C. Riordan and Seven Locks Press Corp. in this matter.” R. 22 (Entry of
Appearance). This document does nothing more than give notice of the identity of the
defendants’ counsel of record. As the Supreme Court of Florida noted when it rejected
the notion that the filing of a notice of appearance will waive a personal-jurisdiction
challenge under Florida law, such a document “indicates no acknowledgment of the
court’s authority, contains no request for the assistance of its process, and, most
important, reflects no submission to its jurisdiction . . . . Such a conclusion [of waiver]
represents . . . no less than the apotheosis of a meaningless technicality.” Public Gas Co.
v. Weatherhead Co., 409 So.2d 1026, 1027 (Fla. 1982) (internal quotation marks
omitted). The Entry of Appearance filed in this case therefore was not, in my view, the
sort of participation in litigation that constitutes a submission to the personal jurisdiction
of the district court.

Moreover, the context in which this particular document was filed demonstrates
clearly that it did not constitute a general appearance and that it did not give the
plaintiffs an indication that the defendants would defend the suit on the merits. On
August 7, 2006, at the very beginning of the suit, the defendants filed a pro se motion
to dismiss for lack of personal jurisdiction. R. 9 (Motion to Dismiss). Because
corporate defendants are not permitted to proceed pro se, the district court ordered
No. 09-3790 Gerber v. Riordan, et al. Page 17

defendant Seven Locks Press to “cause an appearance to be filed on its behalf by counsel
or otherwise show why its default should not be entered and further proceedings
scheduled accordingly.” R. 14 (Order). The October 16, 2006, Entry of Appearance was
therefore filed directly in response to this order—not because the defendant’s attorney
was intending to defend the suit on the merits. How, then, could this perfunctory
document be construed as or deemed to be a submission to the personal jurisdiction of
the district court when it was filed in response to a court order?

Furthermore, at the time that the defendants filed the Entry of Appearance, the
pro se motion to dismiss for lack of personal jurisdiction was still pending. Additionally,
about two months later, the district court issued an order that “deemed” the pro se
motion to dismiss for lack of personal jurisdiction “withdrawn, without prejudice to
defendants’ right to renew said motion.” R. 28 at 2 (Order) (emphasis added). It was
clear to everyone, then, that as of the date of that order, December 8, 2006, the
defendants still retained the right to assert their personal-jurisdiction defense. As a
result, it makes no sense to find now that the Entry of Appearance, filed in response to
an order by the district court to identify corporate counsel, was also a full-fledged
consent to the district court’s exercise of personal jurisdiction over the defendants.

By the same token, the majority’s holding appears to be at odds with Rule 12
itself. Rule 12(h) gives a defendant the right to raise the defense of lack of personal
jurisdiction, along with the defenses of improper venue, improper process, and improper
service of process, in a pre-answer motion or in the answer, whichever is filed first. Rule
12(h) says nothing about the effect of notice-giving documents or documents entered in
response to a court order. Yet according to the majority, an attorney must now be wary,
lest the attorney’s client later be deemed to have unknowingly waived its right to contest
personal jurisdiction. In other words, as a result of the majority’s opinion, rather than
file a notice of appearance, an attorney is “required at the door of the federal courthouse
to intone that ancient abracadabra of the law, de bene esse, in order by its magic power
to enable himself to remain outside even while he steps within.” Orange Theatre Corp.,
No. 09-3790 Gerber v. Riordan, et al. Page 18

139 F.2d at 874. This is the procedure that Rule 12 was designed to change, not to
reinforce.

III. THE MOTION TO ENFORCE A SETTLEMENT AGREEMENT
CONSTITUTES WAIVER.
Several of the other filings of the defendants before their second motion to
dismiss for lack of personal jurisdiction present a close call as potential waivers. There
is one filing, however, that in my view clearly stands out as showing the obvious intent
of the defendants to submit to the personal jurisdiction of the court. I believe that the
defendants’ July 6, 2007 filing of a motion to enforce a settlement agreement allegedly
entered between the parties constituted the pivotal moment at which they undeniably
waived their personal-jurisdiction defense. R. 42 (Motion to Enforce Settlement). This
motion to enforce a settlement is clearly inconsistent with the idea that the district court
lacked personal jurisdiction over the defendants; indeed, the motion to enforce a
settlement directly seeks to have the district court use its power over the parties
(including the defendants) to bind them to a settlement agreement. See Mobile
Anesthesiologists, 623 F.3d at 443. This was also the defendants’ “first significant
defensive move,” Rates Technology, 399 F.3d at 1307, and it “manifest[ed] an intent to
submit to the court’s jurisdiction,” Continental Bank, 10 F.3d at 1297. The defendants’
act of waiting another twenty months to litigate personal jurisdiction also did not
conform to the spirit of Rule 12(h), which calls for an early invocation of a
personal-jurisdiction defense. Id.

I believe, moreover, that the defendants themselves likely recognized that the
motion to enforce the settlement agreement posed problems for their
personal-jurisdiction defense, because they moved to withdraw that motion immediately
before filing their second motion to dismiss for lack of personal jurisdiction. Compare
R. 65 (Motion to Withdraw Motion to Enforce Settlement, filed March 27, 2009); with
R. 67 (Order granting the defendants’ Motion to Withdraw, filed March 30, 2009); and
R. 68 (Motion to Dismiss, filed April 1, 2009). The withdrawal of the motion to enforce
the settlement agreement appears to have been gamesmanship: after unsuccessfully
seeking to have the district court bind the parties to a settlement agreement, the
No. 09-3790 Gerber v. Riordan, et al. Page 19

defendants then sought to remove this motion from the record to clear the way for a
personal-jurisdiction defense. I believe that we should reject this attempt.

***

Because I believe that the filing of a one-sentence notice of appearance as
counsel does not constitute a submission to the personal jurisdiction of the court, I
cannot agree with the reasoning of the majority opinion in this case. Yet because I
would hold that the defendants’ act of filing a motion to enforce a settlement agreement
clearly gave the plaintiffs “a reasonable expectation that [the defendants] w[ould] defend
the suit on the merits,” Mobile Anesthesiologists, 623 F.3d at 443, I concur in the
judgment.