The question before us is whether a party may be deemed to have forfeited by its conduct the defense of lack of personal jurisdiction despite having timely asserted that defense in a responsive pleading pursuant to Mass. R. Civ. P. 12 (h) (1), as appearing in
We conclude that, where а party raises the defense of lack of personal jurisdiction in a responsive pleading, the party’s subsequent conduct may in some circumstances result in a forfeiture of that defense. The determination whether a party’s conduct will cause it to forfeit the right to contest the court’s jurisdiction is fact specific and must be made on a case-by-case
1. Background. This case arose from claims for damages to a valuable painting owned by AIIC’s insured, David Croll. On June 11, 2008, the painting, affixed to a wall in Croll’s residence by two “Floreat” picture hangers
AIIC, as subrogee of Croll, filed suit against Seuffer and Ziabicki on December 16, 2009, alleging negligence, breach of the implied warranty of merchantability and fitness, and a violation of G. L. c. 93A.
The parties subsequently engaged in discovery as to the merits.
Twenty months after filing its answer to the complaint, Seuffer filed a motion for summary judgment against AIIC based on lack of personal jurisdiction, and, in the alternative, on the merits. In denying the motion, the judge determined that, while the court lacked personal jurisdiction over Seuffer, Seuffer had nonetheless waived this defense by litigating the merits of the case and thereby submitting to the jurisdiction of the court. The judge also ruled that the existence of genuine issues of material fact otherwise precluded entry of summary judgment. Seuffer timely filed a petition for interlocutory relief pursuant to G. L. c. 231, § 118, and a single justice of the Appeals Court granted Seuffer leave to file an interlocutory appeal. The case was entered
2. Discussion, a. Standard of review. We review the disposition of a motion for summary judgment de nova, Miller v. Cotter,
b. Constructive waiver or forfeiture under rule 12. The two provisions of rule 12 pivotal to our analysis are rule 12 (b), which conсerns how a party properly may assert an affirmative defense, and rule 12 (h) (1), which outlines when certain of those defenses may be deemed waived. Rule 12 (b) states that
“[ejvery defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (2) Lack of jurisdiction over the person.”
In turn, rule 12 (h) (1) provides:
“A defense of lack of jurisdiction over the person . . . is waived (A) if omitted from a motion [to dismiss], or (B) if it is neither made by motion under this rule nor includedin a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.” 8
The parties dispute whether, given the quoted language, conducting litigation on the merits for over eighteen months after having asserted a lack of personal jurisdiction in an answer, without filing a motion to dismiss, may result in the forfeiture of such a defense.
AIIC, however, interprets rule 12 (h) (1) to mean that a party who initially raises the lack of personal jurisdiction as an affirmative defense in its answer may nevertheless forfeit the defense by virtue of that party’s subsequent conduct. In other words, failure to raise the defense in a motion or responsive pleading would ensure its forfeiture, but inclusion of the defense in such a pleading might not ensure its preservation. Under this reading, while the affirmative defense concerning lack of personal jurisdiction “is waived” if not asserted in a motion to dismiss or in the answer, it also may be forfeited if raised in a pleading but not pursued subsequently, either by a defendant’s active participation in litigation or as a result of the defendant’s dilatory conduct.
The Appeals Court implicitly has adopted AIIC’s interpretation of rule 12 (h) (1) in other factual contexts, suggesting that a party may, by virtue of its conduct, forfeit all waivable affirmative defenses previously asserted in a defensive pleading, including the defense of lack of personal jurisdiction. See Lamarche v. Lussier,
Those Federal courts to have considered the issue have concluded likewise. Under Rule 12 of the Federal Rules of Civil Procedure, upon whiсh the Massachusetts rule is modeled, see Raposo v. Evans,
The Federal interpretation recognizes that the defense of lack of personal jurisdiction, unlike certain other affirmative defenses enumerated in rule 12 (b), is a potentially dispositive procedural defect. See, e.g., Cognex Corp. v. Lemelson Med., Educ. &
Given the “substantial time, expense, and effort” of litigation, Raposo v. Evans, supra at 385, parties who seriously contest the court’s jurisdiction ordinarily have little incentive to delay a determination whether minimum contacts exist. However, where a party does seek “to obtain the very delay which Rule 12 was designed to prevent,” Marcial Ucin, S.A. v. SS Galicia, supra at 997, foreclosing the possibility of forfeiture even where a party “failed to channel [its] efforts” in service of its jurisdictional defense would permit that party to “gamble[] that it could raise the personal jurisdiction issue on the eve of trial, in case a trial occurred.” Hamilton v. Atlas Turner, Inc., supra at 62. Imposing upon a defendant who claims that a forum lacks personal jurisdiction over it the obligation reasonably to press the point fairly puts the court and the other litigants on notice that the issue is contested and should be resolved, thereby promoting judicial economy and efficiency. See Lamarche v. Lussier, supra at 890 (“defendant brought the jurisdictional defense to the attention of the court before further proceedings had gotten underway”).
This аpproach accords with the fundamental purpose of the Massachusetts Rules of Civil Procedure to ensure “the just, speedy and inexpensive determination of every action,” see Mass. R. Civ. P. 1, as amended,
Accordingly, we conclude that raising the absence of personal jurisdiction as a defense in a responsive pleading may not alone suffice to preserve that defensе. If a party alleges a lack of personal jurisdiction in an answer and then fails timely to pursue the defense, a forfeiture of that defense may result. See Sarin v. Ochsner,
The inquiry whether a party has forfeited a defense predicated on a lack of personal jurisdiction necessarily will be fact sensitive, requiring a thorough assessment of the parties’ conduct throughout the litigation.
c. Retroactive application. Ordinarily, our holdings “appl[y] to past as well as to subsequent transactions or occurrences.” See Schrottman v. Barnicle,
Hеre, there is no reason to disturb the presumptively retroactive application of the interpretation of rule 12 (h) (1) we announce today. Seuffer contends that where the language of rule 12 (h) (1), standing alone or when read in conjunction with rule 12 (b), admits of multiple interpretations, it was not unreasonable for litigants to have concluded prior to our decision today that raising a jurisdictional defense in a responsive pleading would suffice to preserve it. We acknowledge that it is possible to read rule 12 (h) (1) so as to permit a party, after alleging a defense of the lack of personal jurisdiction in its answer, to participate in litigation on the merits without risking the subsequent forfeiture of that defense.
However, as discussed supra, the Appeals Court has added an appreciable gloss to the text of rule 12 (h) (1), suggesting that a party’s conduct may serve to indicate its intent to submit to the jurisdiction of the court, even when that party raised a defense of a lack of personal jurisdiction in its answer. See, e.g., Lamarche v. Lussier,
Nor can we say that undue hardship would result from the retroactive application of our decision to Seuffer. Seuffer rightly notes that, in at least one deposition, counsel inquired as to contacts Seuffer had with Massachusetts. Over the course of nearly two years after it raised the defense of a lack of personal jurisdiction in its answer, however, Seuffer initiated motions to extend the discovery schedule, filed a motion to compel the inspection of the Croll residence, joined in a request to inspect the Floreat picture hangers, and served Ziabicki with interrogatories and document requests.
Given this degree of active participation in the litigation, the judge did not err in concluding that Seuffer had caused both AIIC and the court to have a reasonable expectation that it would defend the suit on the merits. In the circumstances, SBuffer’s reliance on its plausible but hardly unassailable interpretation of rule 12 (h) (1) is not dispositive, and we discern no error in the judge’s denial of Seuffer’s motion for summary judgment.
Judgment affirmed.
Notes
The plaintiff and the motion judge employed the term “waiver" as well as the term “forfeiture.” Where a party fails to raise a jurisdictional defense, it properly may be said to have waivеd that defense. However, “[wjhere a litigant’s action or inaction is deemed to incur the consequence of loss of a right, or, as here, a defense, the term ‘forfeiture’ is more appropriate.” Hamilton v. Atlas Turner, Inc.,
The “Floreat” hanger consists of a nail that secures a hanging device to a wall. Here, the nail component of the two devices snapped.
Specifically, AIIC alleged that the nails involved in the Floreat hangers were defectively designed because Seuffer used an insufficient quality control test, and that the nails were defectively manufactured, making them excessively hard. Seuffer contests these allegations but took no position as to the cause of the breakage.
Standing Order 1-88 of the Superior Court, Mass. Ann. Laws Court Rules, at 1108 (LexisNexis 2013-2014), effective March 1, 2007, established time standards applicable to civil actions filed in the Superior Court.
The parties filed three joint motions to extend the tracking order. The first was filed on September 22, 2010, the second on February 3, 2011, and the third on May 18, 2011. None of these motions sought or resulted in an extension of the deadline established by the tracking order to file motions pursuant to Mass. R. Civ. P. 12,
Although Seuffer submits that we should review the motion judge’s order for an abuse of discretion, we have applied the de nova standard to dispositions of motions for summary judgment when such motions are before us on an interlocutory appeal. See, e.g., Hopper v. Callahan,
While a defense predicated on the lack of personal jurisdiction may be waived pursuant to rule 12 (h) (1), as appearing in
We assume without deciding that a defendant who has asserted the lack of personal jurisdiction as a defense in a responsive pleading subsequently may file a motion to dismiss on that ground pursuant to rule 12 (b) (2). This is so even though rule 12 (b) notes that “[a] motion making any of [the enumerated defenses in rule 12 (b) (1)-(10)] shall be made before pleading if a further pleading is permitted.” Although this language could be read to bar a defendant who raises an affirmative defense in its answer from filing a motion to dismiss on that ground, State and Federal courts have interpreted the above provision as applying only when a defendant opts, in the first instance, to assert an affirmative dеfense in a motion to dismiss. See Hamilton v. Atlas Turner, Inc.,
Personal jurisdiction is further distinguished from other rule 12 defenses in that it has constitutional dimensions emanating from the due process clause of the Fifth Amendment to the United States Constitution, Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
The facts of this case illustrate the consequences of delay in the resolution of a party’s personal jurisdiction defense. Because of Seuffer’s nearly two-year delay in filing a motion to dismiss for lack of personal jurisdiction, were Seuffer to have prevailed thereafter in its motion for summary judgment, all statutes of limitation applicable to AHC’s claims would likely have mn. AIIC would thereby have been precluded from filing suit in Wisconsin, an alternative jurisdiction wherе Seuffer’s minimum contacts might well be sufficient. Given that the dispute involves events that occurred in Massachusetts, Wisconsin would presumably apply Massachusetts statutes of limitation. See Wis. Stat. § 893.07 (2013). A party’s dilatory conduct as to its jurisdictional defense, therefore, functionally may bar an opposing party from availing itself of any legal forum.
Upon a defendant’s motion to dismiss for lack of personal jurisdiction pursuant to rule 12 (b) (2), the plaintiff bears the burden of demonstrating the existence of minimum contacts. See, e.g., Lamarche v. Lussier,
For this reason, we invite the standing advisory committee on the rules of civil procedure to consider clarifying the text of rule 12 (h) (1) to reflect our decision today.