On February 23, 2021, the U.S. Court of Appeals for the Sixth Circuit held in Blessing v. Chandrasekhar that defendants do not waive their personal jurisdiction defenses when their counsel files a notice of appearance. In doing so, the court resolved longstanding confusion over whether filing a notice of appearance automatically waives personal-jurisdiction objections, and thus gave attorneys comfort that they can appear in cases without fearing that they will waive their clients’ jurisdictional defenses. While the court made clear that merely filing a notice of appearance is not enough to waive a personal-jurisdiction defense, the court refused to adopt a bright-line rule for what a party must do to waive the defense. After concluding that the defendants in Blessing had not waived their personal-jurisdiction defenses, the Sixth Circuit held that those defenses were not subject to personal jurisdiction in the forum.
Merely filing of a notice of appearance, without more, will not constitute waiver of personal jurisdiction in the Sixth Circuit.
A defendant waives its personal-jurisdiction defense only if its conduct would lead a plaintiff to reasonably conclude that defendant intended to defend the claim on the merits. Whether a defendant has engaged in such conduct is a fact-specific inquiry.
Social media posts that do not evidence an intent to reach a specific forum are not purposefully directed at the forum, even if they referred to forum residents.
In January 2019, several Kentucky high-school students mocked an American Indian man during the March for Life Rally in Washington, D.C. This altercation was caught on video, which internet and news outlets widely disseminated, and the students soon became the subject of widespread criticism, especially on social media. Two of those social media critics were comedian Kathy Griffin and Sujana Chandrasekhar, both of whom urged their followers to identify students involved in the altercation. Chandrasekhar also tweeted a “wanted poster” depicting the students.
In October 2019, the students sued Griffin (a California resident) and Chandrasekhar (a New Jersey resident) in the Eastern District of Kentucky, alleging harassment and invasion of privacy against both defendants. Soon after, Griffin’s attorney filed a notice of appearance, and two weeks later, Griffin moved to dismiss for lack of personal jurisdiction. Chandrasekhar also moved to dismiss for lack of personal jurisdiction. In opposition, the students argued that Griffin waived her jurisdiction defense when her attorney filed a notice of appearance, and that in any event, the court had personal jurisdiction over both defendants because the tweets were “acts” committed in Kentucky.
The district court rejected the students’ arguments and dismissed both cases for lack of personal jurisdiction.
Sixth Circuit Decision
The Sixth Circuit (Siler, Gibbons, and Kethledge, JJ.), in a unanimous opinion, affirmed the district court’s judgment.
The Sixth Circuit first addressed waiver. The court acknowledged that its prior holding in Gerber v. Riordan, 649 F.3d 516 (6th Cir. 2011), had generated confusion in the district courts over whether filing of notice of appearance automatically waives personal jurisdiction defense. The court clarified that Gerber did not set forth a bright-line rule that a party waives personal-jurisdiction defenses if its attorney files a notice of appearance. Instead, Gerber held that any such waiver analysis must be a fact-specific inquiry into the defendant’s litigation conduct, focused on whether the defendant’s participation in litigation would lead the plaintiff to “reasonabl[y] expect” that the defendant “will defend the suit on the merits.”
Turning to Griffin’s litigation conduct, the court concluded that she had not waived her personal-jurisdiction defense. The court reasoned that Griffin’s litigation conduct—filing a notice of appearance and then promptly moving to dismiss for lack of personal jurisdiction—would not have caused the students to reasonably expect that she planned to defend the suit on the merits. The court also rejected the students’ suggestion that Griffin should have filed a special appearance, rather than a general appearance, to preserve her jurisdictional defense. As the court explained, Federal Rule of Civil Procedure 12 eliminated the distinction between general and special appearances. Instead, Rule 12 provides that a defendant waives any personal-jurisdiction defense by failing to raise it in the first responsive pleading. The Rule nowhere says that filing a notice of appearance may waive jurisdictional defenses.
After finding Griffin’s jurisdiction defense preserved, the court held neither Griffin nor Chandrasekhar was subject to personal jurisdiction in Kentucky. First, the court concluded that Kentucky’s long-arm statute did not cover the defendants’ conduct, since neither defendant committed “an act or omission in [Kentucky].” Rather, the defendants sent their tweets from California and New Jersey. Second, the court held that due process forbade the exercise of jurisdiction. The court explained that the defendants’ conduct was directed at their Twitter followers generally, rather than at Kentucky specifically. And although the defendants sought to “shame” the students, that fact does not establish jurisdiction under Walden v. Fiore, 571 U.S. 277 (2014), which held that intentionally harming a plaintiff who lives in a forum is typically not a contact with the forum.
The Sixth Circuit has now made clear that defendants ordinarily do not subject themselves to personal jurisdiction of the court merely by filing a routine notice of appearance. The holding also provides potential defendants with much-needed clarity on which factors courts will consider when assessing waiver of personal-jurisdiction defenses. Lastly, in confirming that Rule 12 in effect abolishes any distinction between general and special appearances, the court reconciles its controlling precedent and the Federal Rules, closing the door on any future attempts by plaintiffs to make the “general appearance” argument.
Blessing also brings the Sixth Circuit in line with the prevailing view in federal courts that defendants implicitly waive personal-jurisdiction defenses only when their conduct manifests an intent to defend the claim on the merits. While some jurisdictions continue to hold that attorneys might waive their clients’ jurisdictional objections by filing a general appearance, those courts still assess the defendants’ conduct as a whole to see whether they have shown “clear purpose” to defend the action on the merits. See, e.g., Royal & Sun All. Ins. Plc v Castor Transp., LLC, 2014 WL 6088527 (S.D. Cal. Nov. 13, 2014). And while the issue is not entirely settled in the lower courts in all circuits, the cases are generally trending toward the Sixth Circuit’s reasoning.
Counsel should take note that at the heart of the Sixth Circuit holding is that defendants’ conduct matters. In laying out its rationale the court took the pains to describe various instances where defendant’s participation in litigation proceedings may have waived personal jurisdiction. Thus, while filing a notice of appearance, standing alone, is insufficient to subject a party to court’s jurisdiction, counsel should not delay raising jurisdictional defenses, which will signal to plaintiffs and to the court that defendants do not intend to waive those defenses.
Finally, although federal courts have been rejecting the waiver-by-appearance argument, some state courts still embrace the argument. See, e.g., Xyrous Commc’ns, LLC v. Bulgarian Telecom. Co. AD, 2009 WL 2877084, at *3 (E.D. Va. Sept. 4, 2009) (observing that Virginia state courts “steadfastly adhere to the traditional general and special appearance doctrine”). Practitioners should thus carefully review the jurisdiction’s law to ensure that they do not unwittingly waive their personal-jurisdiction defense.