No Bright Line Rule for Determining Waiver
On appeal, the plaintiffs argued that Griffin waived her defense when her lawyer filed a notice of appearance before moving to dismiss under the Sixth Circuit’s decision in Gerber v. Riordan. There, the defendants’ attorney entered an appearance of counsel and then proceeded to engage in three years of litigation. The Gerber court concluded that the defendants’ conduct amounted to waiver but also ruled that the waiver occurred at the moment defendant filed the appearance. It reasoned that “filing the notice constituted a general appearance, and ‘a party waives the right to contest personal jurisdiction by failing to raise the issue when making a responsive pleading or a general appearance.’”
The Sixth Circuit clarified that Gerber “rel[ied] on the defendants’ extensive participation in litigation, not as establishing a rule that filing a notice of appearance automatically waives the personal jurisdiction defense.” It observed that the notice was required by local rule simply to facilitate attorneys receiving court filings.
The Sixth Circuit also explained that determining whether there was a waiver required “a fact-specific inquiry into whether ‘[t]he actions of the defendant . . . amount[ed] to a legal submission to the jurisdiction of the court.’” It stated that process was “more art than science” and that a bright line rule would be inconsistent with Federal Rule of Civil Procedure 12, which requires the defense to be raised in a pre-answer defense or motion and is “designed to protect parties from the unintended waiver of any legitimate defense.” Because the defense flowed from the due process clause, the appellate court rejected “a notice-of-appearance-is-waiver rule” because it would “[cause] parties to unknowingly waive their right to contest personal jurisdiction.”
Using that rationale, the Sixth Circuit applied two factors to determine whether the defendants in Blessing had waived the defense: (i) “whether the defendant gave the plaintiff ‘a reasonable expectation that it would defend the suit on the merits’”; and (ii) whether the defendant caused the court to expend “effort that would be wasted if personal jurisdiction was later found lacking.” The appellate court noted that the defendants included the defense in their responsive pleadings, and there was only a two-week window between the filing of the appearance and motion to dismiss. Accordingly, it held there was no waiver and affirmed the dismissal.
Facts Matter in Waiver Analysis
The case ultimately came down to the specific facts at issue. “Blessing stands for evaluating the totality of steps the defendant took before the challenge to personal jurisdiction. Read in its entirety, Gerber does not mean that the filing of a notice of appearance per se waived the defense. Instead, it was the defendants’ engaging in three years of litigation that waived it,” counsels Hon. Nancy F. Atlas, Houston, TX, cochair of the Litigation Section’s Access to Justice Committee.
The requirements of Rule 12 may have caused some practitioners to view it as risky to seek dismissal after filing the notice of appearance. “In light of the confusion over the Gerber decision, discussed extensively by the court in Blessing, I think it was certainly a risk. But I don’t understand the tortured progeny of Gerber, which seems straightforward to me,” notes John P. Hutchins, Atlanta, GA, cochair of the Section’s Trial Practice Committee.
Other Section leaders disagree. “I didn’t think it was a risk to file a notice of appearance. That is a pure procedural matter to enable the party to be heard. A notice of appearance has nothing to do with asserting defenses and is filed separately from the answer,” remarks Atlas. “There is nothing in the rule that would lead anyone to believe that filing a simple notice of appearance alters the clear requirements of the rule,” Hutchins agrees.
Practitioners should still exercise caution, say Section leaders. “Given the confusion over Gerber, I would have made sure that my notice of appearance was filed subject to preserving my client’s right to file a motion under Rule 12,” counsels Hutchins.