Filing a Notice of Appearance Does Not Waive Jurisdiction

• Pages: 23-23
• Date: 01 January 2024
• Author: Ashlee E. Hamilton
• Subject Matter: Civil Law

iling a notice of appearance of counsel does not,

by itself, waive personal jurisdiction. One federal

appellate court held that because neither the notice

nor the defendants’ conduct raised “a reasonable

expectation” that the defendants would “defend the suit

on the merits,” they did not waive the defense. ABA Litigation

Section leaders advise practitioners to exercise caution before

ling a motion to dismiss for lack of personal jurisdiction to

avoid potential waiver arguments.

In Blessing v. Chandrasekhar and Blessing v. Grifn, a

group of Kentucky teenagers confronted a Native American

elder at a 2019 March for Life rally, which led to widespread

negative media coverage. Sujana Chandrasekhar, a New

Jersey doctor, and Kathy Grifn, a California comedian, both

tweeted about the incident, urging their Twitter (now, X) fol-

lowers to hold the students accountable for their actions.

The students sued Chandrasekhar and Grifn in the U.S.

District Court for the Eastern District of Kentucky alleg-

ing harassment and privacy claims. Grifn’s counsel led

an “appearance of counsel” and a pro hac vice motion and

moved to dismiss for failure to state a claim and lack of per-

sonal jurisdiction two weeks later. The plaintiffs contended

that Grifn waived her right to contest personal jurisdic-

tion by failing to assert the defense when her counsel rst

appeared. The district court dismissed the cases, which were

consolidated on the plaintiffs’ appeal to the Court of Appeals

for the Sixth Circuit.

On appeal, the plaintiffs again argued that Grifn waived

her defense when her lawyer led 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 defen-

dants’ conduct amounted to waiver but also ruled that the

waiver occurred at the moment the defendant led the appear-

ance. It reasoned that “ling 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 respon-

sive pleading or a general appearance.’”

The Sixth Circuit claried that Gerber “rel[ied] on the

defendants’ extensive participation in litigation, not as estab-

lishing a rule that ling 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 lings.

The Sixth Circuit explained that determining whether there

was a waiver required “a fact-specic inquiry into whether

‘[t]he actions of the defendant . . . amount[ed] to a legal sub-

mission to the jurisdiction of the court.’” It stated that process

was “more art than science” and 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 unin-

tended waiver of any legitimate defense.” 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 fac-

tors to determine whether the defendants in Blessing 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.” Noting that there was only a two-

week window between the ling of the appearance and motion

to dismiss, the appellate court held there was no waiver and

afrmed the dismissal.

The requirements of Rule 12 may have caused some prac-

titioners to view it as risky to seek dismissal after ling 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 tor-

tured progeny of Gerber, which seems straightforward to me,”

notes John P. Hutchins, Atlanta, GA, cochair of the Litigation

Section’s Trial Practice Committee.

Other Section leaders disagree. “I didn’t think it was

a risk to le a notice of appearance,” says Hon. Nancy F.

Atlas, Houston, TX, cochair of the Section’s Access to Justice

Committee. “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 led separately from

the answer,” remarks Atlas. “There is nothing in the rule

that would lead anyone to believe that ling a simple notice

of appearance alters the clear requirements of the rule,”

Hutchins agrees.

Practitioners should still exercise caution. “Given the confu-

sion over Gerber, I would have made sure that my notice of

appearance was led subject to preserving my client’s right to

le a motion under Rule 12,” counsels Hutchins.

Filing a Notice of Appearance Does

Not Waive Jurisdiction

By Ashlee E. H amilton, Litigation News Contr ibuting Ed itor

WINTER 2024 • VO L. 49 NO. 2

23 | ABA LITIGATION SECTIO N

Published i n Litigation News Vo lume 49, Numbe r 2, Winter 2024. © 2 024 by the Americ an Bar Assoc iation. Repro duced with perm ission. All r ights reser ved. This infor mation or any por tion thereof

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