The Rhode Island Superior Court has held in an asbestos case that defendant forfeited its defense of personal jurisdiction by actively litigating the claims against it for over two years before moving to dismiss even though it had asserted the defense in its answer. Bazor v. Abex Corp., C.A. No. PC-10-3965 (R.I.Super. May 2, 2016). The court said that during those two years the defendant had objected to the trial date that was pending when it was added to the case, re-deposed plaintiff, identified its witnesses for deposition, participated in the deposition of one of plaintiff’s experts, objected to its Rule 30(b)(6) deposition, but not on jurisdictional grounds, identified its expert witnesses, filed motions in limine, defended the deposition of one of its experts, and participated in settlement conferences. The court commented that during none of these events did the defendant mention any preservation of the defense of lack of personal jurisdiction.
In a footnote, the Court differentiated between a waiver of a defense and a forfeiture of one. It said that a failure to raise a jurisdictional defense in an answer was a waiver, but “‘[w]here a litigant’s action or inaction is deemed to incur the consequence of a loss or a right, or as here, a defense, the term ‘forfeiture’ is more appropriate.'”
The Court held the defendant has initially preserved its personal jurisdiction defense by asserting it in its answer rather than moving immediately to dismiss. It distinguished a Rhode Island Supreme Court opinion, Hall v. Kuzenka, 843 A.2d 474 (R.I. 2004), by noting in Hall that only three months elapsed before defendant filed its motion and during those three months only jurisdictional discovery took place. There was no waste of judicial resources. The Court said, by contrast, the subject case had “utilized considerable judicial resources” before defendant filed its motion.
The Court found substantial support in federal law for plaintiff’s argument that defendant had forfeited its defense by failing to assert it in a timely manner. Two factors are collectively important in determining whether the defense is forfeited: how long the defendant delayed in asserting the defense, and, the nature and extent of defendant’s conduct before raising the motion to dismiss. Among the conduct that supports a finding of forfeiture is participating in merits discovery and settlement conferences, filing an appearance and attending depositions, and litigating other motions.
The Court rejected defendants’ argument that it could not bring its motion prior to the Supreme Court’s decisions in Daimler AG v. Bauman, 134 S.Ct. 746 (2014). It said there was sufficient pre-Daimler precedent upon which defendant could have based its motion. Moreover, defendant was aware of its lack of contacts with Rhode Island before Daimler was decided. Finally, the Court concluded that defendant’s substantial participation in “merits” litigation during the period between when it filed its answer and when it filed its motion, without purporting to preserve its defense, constituted forfeiture.
Although the Court emphasizes the defendant’s failure to mention continually its preservation of its defense during the “merits” litigation, it appears from the opinion that a significant factor was the potential waste of judicial resources through motion practice, hearings and settlement conferences, before the motion was filed. Accordingly, it is possible that even if a defendant were to consistently assert the preservation of the defense, the Court might still deem forfeiture to have occurred if defendant’s delay caused the Court to invest substantial time in the merits of the case.
Bazor v. Abex Corp., C.A. PC-10-3965 (R.I.Super. May 2, 2016)
This decision is available at https://www.courts.ri.gov/Courts/SuperiorCourt/SuperiorDecisions/10-3965.pdf.
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