Opinion
CASE NO. 3:08-cv-158-MEF.
March 30, 2010
MEMORANDUM OPINION AND ORDER
This cause is before the Court on Defendant Ulrich GmbH Co. KG's ("Ulrich GmbH") Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 33), filed on June 23, 2009. The Court will deny this motion. Under the waiver-and-consolidation provisions of Federal Rules of Civil Procedure 12(g) and (h), Ulrich GmbH has waived its personal-jurisdiction defense.
Richard Edward Frye and Frauke Shepard-Frye ("the plaintiffs") filed this suit against Ulrich GmbH, a German entity, and Ulrich Medical USA, Inc. ("Ulrich USA"), a U.S. entity, in the Circuit Court for Macon County, Alabama, on January 23, 2008. On March 6, 2008, Ulrich USA removed the case to federal court, ( see Doc. # 1), and Ulrich GmbH joined in the removal, stating:
By joining in and consenting to removal of this action, Ulrich GmbH expressly reserves all rights and defenses that it is entitled to assert, and in no way does Ulrich GmbH waive its right to proper and legal service of process, nor does it consent to this Court's personal jurisdiction.
(Doc. # 2 at 1-2.) On the same day, Ulrich GmbH also filed a motion challenging the sufficiency of service of process under Rule 12(b)(5). ( See Doc. # 5.) In the motion, Ulrich GmbH asserted that it was "appear[ing] specially, not to be construed as a general appearance for purposes of this litigation, for the limited purpose of moving this Court for an Order to quash the Plaintiffs' attempt at service of process upon it." ( Id. at 1.) The Court granted the motion to quash on March 25, 2009. ( See Doc. # 27.)
In the same Memorandum Opinion and Order, the Court also granted Ulrich USA's motion to dismiss for lack of personal jurisdiction. ( Id.)
Ulrich GmbH now moves to dismiss this case under Rule 12(b)(2) for lack of personal jurisdiction. The plaintiffs oppose the motion, arguing that Ulrich GmbH has waived its Rule 12(b)(2) personal-jurisdiction defense by failing to raise it in its Rule 12(b)(5) motion to quash. This Court agrees.
Under Rule 12's waiver-and-consolidation provisions, a defendant waives its Rule 12(b)(2) personal-jurisdiction defense if it makes a pre-answer motion under Rule 12 and fails to raise its personal-jurisdiction defense in that motion. See Fed.R.Civ.P. 12(b), (g)(2), (h)(1); Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs., 553 F.3d 1351, 1360 (11th Cir. 2008) (citing Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990)) ("Simply put, a litigant must cite each separate Rule 12(b) defense in the pre-answer motion or if no pre-answer motion is filed, then in the responsive pleading. Citing one Rule 12(b) defense in the hope that it will sufficiently raise another defense is not permissible."). Ulrich GmbH made a pre-answer motion under Rule 12(b)(5) challenging the sufficiency of service of process and failed to object to personal jurisdiction in that motion. Therefore, Ulrich GmbH has waived its Rule 12(b)(2) personal-jurisdiction defense.
Rule 12(g)(2) states: "[A] party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." Rule 12(h)(1) states: "A party waives any defense listed in Rule 12(b)(2)-(5) [e.g., a personal-jurisdiction defense] by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2). . . ."
Further, Ulrich GmbH cannot bypass Rule 12's waiver-and-consolidation provisions by using the now-obsolete procedural device known as a "special appearance." See Shutts v. Precision Assessment Tech. Corp., No. 6:08-cv-2191, 2009 WL 960103, at *1-2 (M.D. Fla. Apr. 6, 2009) (finding that a defendant had waived any Rule 12(b)(2) personal-jurisdiction defense it might have had when it made a pre-answer motion under Rule 12(b)(3) objecting to improper venue and failed to object to personal jurisdiction in the motion, even though the defendant asserted in the motion that it was making a special appearance to challenge the venue "without submitting itself to the jurisdiction" of the court). The text of Rule 12 does not permit a litigant to obviate the waiver-and-consolidation provisions merely by saying that they do not apply, and allowing a litigant to do so would frustrate the underlying policy of the waiver-and-consolidation provisions, which is to encourage the consolidation of motions and discourage the dilatory tactic of making them in a series.
In addition, Ulrich GmbH's withholding of its consent to personal jurisdiction in its joinder to Ulrich USA's removal of this case is irrelevant for a more fundamental reason: the joinder is not a Rule 12 pre-answer motion or a responsive pleading.
Accordingly, it is hereby ORDERED as follows:
1. Ulrich GmbH's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. # 33), filed on June 23, 2009, is DENIED.
2. The plaintiffs' Motion to Strike Defendant's Reply to Plaintiffs' Response in Opposition to Motion [to] Dismiss (Doc. # 39), filed on July 30, 2009, is DENIED as moot.
3. Pursuant to 28 U.S.C. § 636(b)(1), this case is REFERRED to U.S. Magistrate Judge Susan Russ Walker for all pretrial proceedings and the entry of any orders or recommendations as may be appropriate.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).