Post by Sapphire Capital on Jul 6, 2014 4:15:44 GMT 4
Litigating the Merits Causes Forfeiture of Personal Jurisdiction Defense Set Forth in Answer
In American Int'l Ins. Co. v. Seuffer, 468 Mass. 109 (2014), the SJC held that a defendant can forfeit a personal jurisdiction defense raised in its answer, by actively participating in a merits defense. Acknowledging that "Massachusetts case law had not squarely addressed the point," the SJC nonetheless concluded that "the weight of precedent fairly put [defendant] on notice that merely asserting the jurisdictional defense in its answer, without more, might be insufficient to preserve the defense." Whether forfeiture has occurred is "fact-sensitive" and several factors "could be relevant:"
the amount of time that has elapsed;
the changed procedural posture of the case;
the extent of discovery on the merits; and
the active engagement of defendant in pretrial litigation activities.
In American Int'l Ins. Co. v. Seuffer, 468 Mass. 109 (2014), the SJC held that a defendant can forfeit a personal jurisdiction defense raised in its answer, by actively participating in a merits defense. Acknowledging that "Massachusetts case law had not squarely addressed the point," the SJC nonetheless concluded that "the weight of precedent fairly put [defendant] on notice that merely asserting the jurisdictional defense in its answer, without more, might be insufficient to preserve the defense." Whether forfeiture has occurred is "fact-sensitive" and several factors "could be relevant:"
the amount of time that has elapsed;
the changed procedural posture of the case;
the extent of discovery on the merits; and
the active engagement of defendant in pretrial litigation activities.