Scott Gerber v. James Riordan, 649 F.3d 514

Gerber sues Riordan and Seven Locks Press in a diversity action for breach of contract and related torts; district court dismissed for lack of personal jurisdiction; Gerber appeals.
Gerber is an Ohio resident faculty member; contract involved publication of his manuscript.
Seven Locks Press is a Nevada corporation doing business in California; Riordan acted as its publisher/agent.
June 2005 contract required publication within 120 days and a publication subsidy of $11,500, which Gerber allegedly paid in November 2005.
November 2005 amendment shifted publication to early February 2006; Gerber alleges delays and failure to publish as agreed.
Procedural posture: multiple pre-trial filings, default judgment before appearance by defense counsel, later motions, and eventual appeal challenging jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of personal jurisdiction defense through litigation participation	Gerber (via Riordan/Seven Locks) waived jurisdiction defenses.	Riordan/Seven Locks did not intend to submit to jurisdiction; limited actions did not equal waiver.	False; the court held waiver occurred due to counsel’s general appearance.
Effect of the October 16, 2006 Entry of Appearance	Entry of Appearance signals submission to court’s jurisdiction.	Document was a brief notice of counsel identity, not a meaningful submission.	Not a waiver by itself; not sufficient to signal defense on merits.
Impact of the July 6, 2007 Motion to Enforce Settlement	Motion to enforce a settlement showed intent to defend merits.	Motion was inconsistent with lack of jurisdiction; may signal submission.	This filing clearly evidenced intent to submit to the court’s jurisdiction, constituting waiver.
Rule 12(h) waiver framework applied to participation in litigation	Rule 12(h) guidance governs waiver from pre-answer motions or appearances.	Participation can create waiver under a flexible, common-sense approach.	Majority adopts waiver-by-participation framework; the specific actions matter for waiver.

Bird v. Parsons, 289 F.3d 865 (6th Cir. 2002) (de novo review of Rule 12(b)(2) jurisdiction dismissal)
Calphalon Corp. v. Roulette, 228 F.3d 718 (6th Cir. 2000) (minimum contacts and long-arm due process analysis; two-part test in diversity cases)
Southern Machine Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968) (three-part Mohasco test for specific jurisdiction)
Ins. Co. of Ireland, Ltd v. Compagnie des Bauxite de Guinea, 456 U.S. 694 (1982) (waiver by appearance under due process; submission to jurisdiction)
Days Inn Worldwide, Inc. v. Patel, 445 F.3d 899 (6th Cir. 2006) (waiver by litigation participation under Rule 12(h))
Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A., 623 F.3d 440 (7th Cir. 2010) (test for waiver: reasonable expectation of defending merits or court effort wasted by lack of jurisdiction)
Continental Bank, N.A. v. Meyer, 10 F.3d 1293 (7th Cir. 1993) (agency/participation-based waiver analysis in jurisdiction)