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IP Alert: Seventh Circuit Liberally Construes Timing Requirement Under Rule 12

January 28, 2016

Today, in Hedeen International, LLC v. Zing Toys, Inc., the United States Court of Appeals for the Seventh Circuit concluded that Rule 12 of the Federal Rules of Civil Procedure does not require a litigant to raise a defense lack of personal jurisdiction within 21 days after service of the complaint. This is believed to be the first time that the court has considered this aspect of Rule 12.

The case involved a dispute for breach of contract. The district court entered an order on July 24, 2014, declaring that Peter Cummings, one of the defendants, had been properly served. On October 22, 2014, Cummings filed a motion to dismiss, asserting, among other things, lack of personal jurisdiction. The district court held that it indeed lacked personal jurisdiction over Cummings and granted the motion to dismiss.

On appeal, plaintiff Hedeen asserted that Cummings had waived his challenge to personal jurisdiction by failing to assert this defense within 21 days after the July 24 nominal service date. The Seventh Circuit disagreed. Rule 12(a) specifies that the time for service of a responsive pleading is 21 days after service of the complaint, and Rule 12(h) provides that the defense of personal jurisdiction is waived if a party does not include this defense in either a Rule 12 motion or its responsive pleading. The court reasoned that nothing in the language of these rules requires that a personal jurisdiction defense must be raised within 21 days after service of the complaint, but, to the contrary, the rules appear to expressly contemplate that the defense may be raised after more time has elapsed. Accordingly, the court affirmed the order of dismissal.

The Seventh Circuit did acknowledge that other courts have taken “divergent paths” on this question. Also, the court cautioned that the personal jurisdiction defense did not excuse the requirement to respond to the lawsuit, noting that failure to respond might lead to a default judgment. The court further cautioned that a waiver might be held “where [a defendant] causes the court to go to some effort that would be wasted if personal jurisdiction is subsequently found lacking.” On the question presented in this case, though, the court determined that the defendant had not waived his personal jurisdiction defense even by waiting until after 21 days to raise it.

Hedeen International establishes a practice pointer for the district courts in the Seventh Circuit. Please contact any member of Fitch Even’s litigation team with questions concerning the above decision.


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