More Uncertainty After Daimler AG v. Bauman: A Response to Professors Cornett and Hoffheimer

In Good-Bye Significant Contacts: General Personal Jurisdiction After Daimler AG v. Bauman, Professors Judy M. Cornett and Michael H. Hoffheimer identify a number of legal issues that will become the focus of litigation after Daimler. This Response identifies an additional, perhaps surprising issue that is currently being litigated in the wake of Daimler AG v. Bauman. 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 these defendants have waived their jurisdictional defense under Federal Rule of Civil Procedure 12 because it was “available” to them in 2011 after Goodyear Dunlop Tires Operations, S.A. v. Brown was decided. This Response explains the doctrine of waiver under Rule 12 and examines three cases that have addressed waiver under Goodyear and Daimler. This Response 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