More Uncertainty after Daimler AG v. Bauman: A Response to Professors Cornett and Hoffheimer
12 Pages Posted: 5 Oct 2015 Last revised: 16 Dec 2015
Date Written: October 4, 2015
In the lower federal courts, defendants who have litigated cases on the merits without raising lack of personal jurisdiction as a defense are filing motions to dismiss and arguing that they are not subject to general jurisdiction in the forum under Daimler's "at home" standard. The question is whether those defendants have waived their jurisdictional defense under Federal Rule of Civil Procedure 12 because it was "available" to them in 2011 after the Supreme Court decided Goodyear Dunlop Operations S.A. v. Brown. This article explains the doctrine of waiver under Rule 12 and examines three cases that have addressed waiver under Goodyear and Daimler. This Article then asserts that defendants who failed to argue that they were not "at home" in the forum after Goodyear waived their jurisdictional defense and should not be permitted to raise it under Daimler.
Keywords: civil procedure, personal jurisdiction, Daimler
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