In a recent 2‑1 decision addressing personal jurisdiction (Gerber v. Riordan, et al., No. 09-3790, 11a0225 p. 06 (Aug. 18, 2011)), the Sixth Circuit appears to have revived the obsolete procedure known as a "special appearance."
In Gerber, the plaintiff appealed the district court's dismissal of his case under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. The Sixth Circuit reversed on the ground that Defendants waived their personal jurisdiction defense. A personal jurisdiction defense is waived automatically if not raised in a previous Rule 12 motion, but that wasn't what occurred here: Defendants' first Rule 12 motion was its motion to dismiss for lack of personal jurisdiction. Plaintiff therefore argued the doctrine that a personal jurisdiction defense is waived when Defendants' actions give "[P]laintiff a reasonable expectation that [Defendants] will defend the suit on the merits or must cause the court to go to some effort that would be wasted if personal jurisdiction is later found lacking." Slip op. at 8. Before filing that 12(b)(2) motion, Defendants in Gerber filed other motions, and otherwise participated in the litigation, for two and a half years. The Sixth Circuit's opinion lists nine filings or actions by Defendants, including a motion to stay litigation pending arbitration; a memorandum in opposition to mediation; a motion to enforce a settlement agreement (which was subsequently withdrawn); and service of Rule 26 discovery responses.
The majority specifically noted that a number of these filings and actions, for example, Defendants' motion to stay litigation pending arbitration and its motion to vacate a default judgment, did not constitute waiver. The majority instead singled out, as the basis for its finding of waiver, the fact that Defendants' counsel filed a one-sentence entry of appearance, which the court deemed a "general appearance." "[I]t is clear that Defendants' filing of a general appearance with the district court constituted a voluntary acceptance of the district court's jurisdiction, and therefore, a waiver of Defendants' personal jurisdiction defense." Slip op. at 9.
Judge Karen Nelson Moore concurred in the majority's decision, on the ground that the motion to enforce a settlement agreement was an adequate basis to find a waiver of the personal jurisdiction defense. Judge Moore, though, criticized the majority for an overly-literal interpretation of the term "general appearance." While that term can be "useful in this context as a short-hand way of referring to pleadings or motions" from which one can include an intent to defend the suit on its merits, (slip op. at 16), in Judge Moore's view, the majority erred by holding that defense counsel's filing of an entry of appearance, a "general appearance," was consenting to jurisdiction. The court, Judge Moore noted, was in effect stating that, to preserve the personal jurisdiction argument, the attorney should have made a special appearance, a procedure superseded by the adoption of Rule 12 of the Federal Rules of Procedure in 1938. For the benefit of attorneys not yet in practice in 1938 (or who might think a "special appearance" involves a new haircut, suit or shoes), Judge Nelson explained that, pre‑1938, a defense attorney seeking to challenge personal jurisdiction "would make a limited or 'special,' appearance before the court to lodge the objection." Slip op. at 11. The attorney's presence in the jurisdiction to contest jurisdiction would not give the court personal jurisdiction over the defendant, as long as the attorney's appearance was "special."
The distinction between "general" and "special" appearances did not survive the adoption of Rule 12. "Yet according to the majority, an attorney must now be wary, lest the attorney's client later be deemed to have unknowingly waived its right to contest personal jurisdiction. In other words, as a result of the majority's opinion, rather than file a notice of appearance, an attorney is 'required at the door of the federal courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to enable himself to remain outside even while he steps within.'" Slip op. at 17.
Based on the considerations raised in Judge Moore's concurrence, one may ask whether subsequent Sixth Circuit panels will limit the case to its facts. What will the court do, for instance, in a case in which a defendant's counsel files a pro forma, one-sentence notice of appearance -- a "general" appearance in the court's parlance -- but then promptly and timely files a motion to dismiss for lack of personal jurisdiction? While the majority in Gerber clearly cited to the "general appearance" as the reason for its decision, there were other filings over a period of many months. One could therefore argue that the notice of appearance constituted a general appearance only in the context of the other activities.