Civ Pro Practice Question 3 | Make This Your Last Time

Civil Procedure: Jurisdiction and Venue

A notary from State A sued a pharmacist from State B in a federal district court located in State A. The notary is seeking $100,000 compensation for tortious injuries caused by the pharmacist’s allegedly negligent acts which occurred in State B. The pharmacist has never been to State A and has never had any contacts whatsoever with State A. The pharmacist’s lawyer ﬁled a motion to dismiss for lack of subject-matter jurisdiction, which the court denied. After answering the notary’s complaint, the pharmacist’s lawyer then ﬁled a motion to dismiss for lack of personal jurisdiction.

How is the court likely to rule?

A: Grant the motion, but only if the pharmacist had pled the aﬃrmative defense of a lack of personal jurisdiction in her answer.

B: Grant the motion, because lack of personal jurisdiction cannot be waived.

C: Deny the motion, because the pharmacist waived the defense.

D: Deny the motion, because the parties are completely diverse and the amount in controversy exceeds $75,000.

Answer and Explanation

C is correct. The pharmacist waived the defense of lack of personal jurisdiction because she failed to assert it in her ﬁrst motion to dismiss. A challenge to personal jurisdiction must be raised in the ﬁrst pre-answer motion, or if there are no pre-answer motions then in the answer, or else the defense is waived. Therefore, when the pharmacist failed to include the defense in her ﬁrst pre-answer motion, she waived the defense and implicitly consented to the court’s jurisdiction over her.

A is incorrect. The defense of lack of personal jurisdiction is only valid if presented in the ﬁrst motion to the court. Even if the pharmacist had included it in her answer, she still ﬁled a pre-answer motion beforehand; on these facts, the pharmacist waived the defense because she failed to assert it in her ﬁrst motion to dismiss.

B is incorrect. Lack of personal jurisdiction can be waived as explained above. It is lack of subject-matter jurisdiction that cannot be waived.

D is incorrect. It is true that there is subject-matter jurisdiction through diversity jurisdiction here. However, these criteria have no bearing on personal jurisdiction or on whether challenges to personal jurisdiction have been waived.

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