Consent
Consent is the third common ground for personal jurisdiction, and the theme is simple: a defendant can hand the court power over them, and once they do, the usual contacts ana
3. Personal Jurisdiction: Consent
Another common ground for exercising personal jurisdiction is the defendant’s consent.
- All states recognize this ground through governing statutes or regulations, and this ground satisfies constitutional requirements.
- An individual or corporation may consent to personal jurisdiction by defending against the complaint without moving to dismiss for lack of personal jurisdiction. Defending against the complaint (other than challenging personal jurisdiction) waives objections that a defendant might have to personal jurisdiction.
- It is possible for individuals or corporations to consent to personal jurisdiction before any claim arises.
- Some contracts specify that the parties have agreed to submit to a particular court’s jurisdiction.
- Some states require corporations to consent to personal jurisdiction within that state when the corporation registers to do business in the state.
- Consent may apply to any type of claim. Neither the claim nor defendant need have any particular relationship to the jurisdiction in which the court sits, if the defendant consents to jurisdiction.
A defendant can hand the court power over them, and once they do, the usual contacts analysis drops out. Like presence, consent supports jurisdiction over any claim, related to the forum or not.
Consent is the third common ground for personal jurisdiction, and the theme is simple: a defendant can hand the court power over them, and once they do, the usual contacts analysis drops out. Like presence, consent supports jurisdiction over any claim. Neither the claim nor the defendant has to have any relationship to the forum if the defendant consented.
- 1By litigation conduct. A defendant who defends against the complaint without moving to dismiss for lack of personal jurisdiction consents. Put differently, defending on anything other than the personal jurisdiction objection waives that objection. So a defendant who files an answer arguing the merits, or who counterclaims, or who otherwise litigates without raising the personal jurisdiction defense, has consented. The cure is to challenge personal jurisdiction; skip that, and the objection is gone.
- 2Before any claim arises, by a contract in which the parties agree to submit to a particular court's jurisdiction (a forum-selection clause).
- 3Before any claim arises, by a state requirement that a corporation consent to personal jurisdiction when it registers to do business there.
The forum-selection clause and the registration requirement are both advance consent, and both work even though the dispute does not yet exist. Tie it together: consent, however given, produces general jurisdiction, so an option that says the court cannot hear an unrelated claim, or that the defendant lacked contacts, misses the point once consent is established. The defendant agreed; contacts are beside the point.
Once consent is established, an option that denies jurisdiction because the court cannot hear an unrelated claim, or because the defendant lacked contacts, misses the point. The defendant agreed; contacts are beside the point.
"You can give the court power."
Consent supports any claim, so contacts and relatedness drop out once consent exists.
defend without moving to dismiss for lack of personal jurisdiction (defending on the merits waives the objection)
a contract clause agreeing to submit to a court
registering to do business where the state requires consent
Trap to kill: 'no contacts' or 'unrelated claim' after the defendant has already consented.
A wholesaler is sued in a court of a state where it has no offices, no sales, and no other dealings. Instead of moving to dismiss for lack of personal jurisdiction, the wholesaler files an answer that contests the merits and adds a counterclaim against the plaintiff. Two months later it tries to argue the court never had personal jurisdiction over it.
Suppose the wholesaler's very first filing had been a motion to dismiss for lack of personal jurisdiction. Then it preserved the objection and did not consent by litigation conduct.
An option denying jurisdiction because the defendant has no contacts or the claim is unrelated, after the defendant has consented.
Consent supports general jurisdiction; once the defendant consents, contacts and relatedness are irrelevant.An option that misstates the waiver standard, for example saying only an express written waiver counts or that answering on the merits preserves the objection.
Defending against the complaint without moving to dismiss for lack of personal jurisdiction waives the objection; challenging it preserves it.An option claiming consent cannot be given until a claim arises, or that a forum clause is ineffective before suit.
Individuals and corporations may consent before any claim arises, including by contract or registration.An absolute option such as 'any filing forfeits all defenses' or 'any contract with an out-of-state party creates jurisdiction everywhere.'
Consent is tied to specific conduct (defending without objecting) or a specific agreement; the sweeping universal is wrong.a stem that emphasizes the defendant has no dealings with the forum, yet also shows the defendant agreeing to a court in a contract, registering to do business under a consent requirement, or litigating the merits without objecting to jurisdiction.
The moment you spot any of those, ask: did the defendant consent?
If a forum-selection clause, a registration-based consent, or merits litigation without a personal jurisdiction challenge is present, consent is established, the court has general jurisdiction, and you eliminate every option resting on 'no contacts' or 'unrelated claim.' Consent can come before the dispute even exists.
A distributor was sued in a court of a state where it does no business and has no property. Rather than first object to the court's power over it, the distributor filed an answer disputing the facts of the claim and asserted a counterclaim against the plaintiff. Several weeks into the litigation, the distributor moved to dismiss, arguing for the first time that the court lacked personal jurisdiction over it.
Should the court grant the distributor's motion to dismiss for lack of personal jurisdiction?
Two companies signed a supply agreement containing a clause stating that any dispute arising under the agreement would be brought in the courts of a particular state, and that both parties agreed to submit to that state's jurisdiction. When a dispute later arose, one company sued the other in that state's court. The defendant company, which has no offices or sales in that state, argues that the court cannot exercise jurisdiction over it because it lacks any connection to the state.
Is the defendant company's argument likely to succeed?
A corporation incorporated and headquartered elsewhere registered to do business in a state whose law requires registering corporations to consent to personal jurisdiction in that state's courts. A plaintiff later sued the corporation in that state on a claim that arose entirely in another state. The corporation argues that because the claim has nothing to do with the registration state, the court cannot hear it.
Does the court in the registration state have personal jurisdiction over the corporation?
A contractor was sued in a state where it has no contacts whatsoever. The contractor's very first filing in the case was a motion to dismiss for lack of personal jurisdiction, raised before it addressed the merits of the claim in any way. The plaintiff argues that simply by appearing and filing a motion, the contractor consented to the court's jurisdiction.
Is the plaintiff correct that the contractor consented to personal jurisdiction?
An individual signed an enrollment agreement with an out-of-state academy that included a clause in which she agreed to submit to the courts of the academy's home state for any future dispute. At the time, no dispute existed between them. A year later, a dispute arose and the academy sued her in its home state. She has never visited that state and argues the court has no power over her because she had no connection to the state and no claim existed when she signed.
Is the academy's home-state court likely to have personal jurisdiction over the individual?