Gerber v. Riordan
649 F.3d 514
| 6th Cir. | 2011Background
- Plaintiff Scott Gerber sues Defendants Riordan and Seven Locks Press Corp. in a diversity action for breach of contract and related torts; amount in controversy exceeds $75,000.
- Contract formed June 2005 to publish Gerber's manuscript; Riordan acted as Seven Locks' agent in negotiating the contract.
- Publication deadline initially 120 days; later amended to early February 2006; Gerber alleges publication was not timely.
- Gerber paid an $11,500 publication subsidy in November 2005.
- Plaintiff resides in Ohio; contract parties have connections to Ohio through business and publication activities.
- District court dismissed for lack of personal jurisdiction; Gerber appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of personal jurisdiction defense by appearance | Defendants waived by entering a general appearance and participating in litigation. | Some actions do not signal waiver; a single notice of appearance is insufficient. | Waiver found due to defendants' appearance through counsel. |
| Scope of waiver after Rule 12(h) | Participation in litigation signals submission to jurisdiction. | Only some actions signal submission; not all filings constitute waiver. | Waiver supported by overall litigation participation; specific filings discussed. |
| Effect of Entry of Appearance as counsel | Entry of Appearance should be treated as waiver. | One-sentence notice is not meaningful waiver; context matters. | Court held Entry of Appearance contributed to waiver under majority view. |
| Role of motion to enforce settlement in waiver analysis | Motion to enforce settlement shows intent to submit to court's jurisdiction. | Withdrawal of the motion undermines claim of consent. | Motion to enforce settlement considered as part of waiver analysis; later withdrawal noted. |
Key Cases Cited
- Ins. Co. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (U.S. 1982) (waiver of jurisdiction rights by appearance or participation)
- Days Inns Worldwide, Inc. v. Patel, 445 F.3d 899 (6th Cir. 2006) (waiver through litigation participation; Rule 12(h) rationale)
- Calphalon Corp. v. Rowlette, 228 F.3d 718 (6th Cir. 2000) (tests for specific jurisdiction and waiver principles)
- Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440 (7th Cir. 2010) (describes waiver by reasonable expectation of defense on merits)
- Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968) (three-part Mohasco test for specific jurisdiction)
- Reynolds v. Int'l Amateur Athletic Fed'n, 23 F.3d 1110 (6th Cir. 1994) (special vs. general appearance concepts pre-rule 12)