District Court Finds Personal Jurisdiction Defense Waived Despite Evolution of the Law

The World in U.S. Courts: Summer 2014 - Personal Jurisdiction | June.23.2014

Gilmore v. Palestinian Interim Self-Government Authority, United States District Court for the District of Columbia, June 23, 2014

Plaintiffs are the estate and family members of a U.S. citizen killed in East Jerusalem in 2000. Plaintiffs filed suit against the Palestinian Interim Self-Government Authority (“PA”), the Palestinian Liberation Organization (“PLO”), and various individuals under the Anti-Terrorism Act of 1991. The suit was initially filed in 2001, and Defendants initially failed to file a responsive pleading. The Court entered a default judgment, after which Defendants appeared through counsel and sought to vacate the default judgment and dismiss the claim for failure to state a claim and lack of subject matter jurisdiction. The individual Defendants also moved to dismiss for personal jurisdiction, but the PA and PLO did not. The Court granted the Individual Defendants’ motion to dismiss but denied PA and PLO’s attempt to dismiss the case. After a lengthy discovery phase, the PA and PLO filed for Judgment on the Pleadings for lack of personal jurisdiction in 2014.

Although Defendants argued the U.S. Supreme Court’s decision in Daimler AG v. Bauman dictated that they be dismissed from the suit, the Court held the PA and PLO had waived their defense of personal jurisdiction by not raising the issue for over a decade. Personal jurisdiction is a waivable defense and must be raised in the first available motion, as required by the Federal Rules of Civil Procedure 12(g) and (h). Because Defendants moved to dismiss on other grounds, but failed to raise lack of personal jurisdiction, which was available, the defense was waived. Defendants argued the defense was not available in practice because the Supreme Court had not yet held in Daimler that a foreign defendant is subject to general personal jurisdiction only if its contacts with the U.S. are so continuous and systematic so as to render it “at home” in this country. The Court rejected this argument, observing that Defendants had argued personal jurisdiction in multiple filings, despite failing to formally file for dismissal on that basis. Because Defendants had previously argued that their pre-Daimler personal jurisdiction arguments were in fact “available and meritorious,” they could not now argue the defense was not available. Furthermore, the Court noted that the “at home” rule had been first set out by the U.S. Supreme Court in a 2011 case, meaning that too much time had passed before Defendants cited the rule in her 2014 motion.

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