In the case of Myrtle Gannon v. John Cuckler, MD, et al, Case Number 2D17-4888 (Fla. 2d DCA October 16, 2019), Florida’s Second DCA held that the failure to raise lack of personal jurisdiction as a defense in either by motion or in the answer to the lawsuit results in waiver of that defense.
This case involved an allegedly defective hip replacement. Ms. Gannon sued for product liability. The defendants to the lawsuit filed a motion to dismiss for forum non conveniens as their initial pleading filed in the case. This motion did not assert lack of personal jurisdiction.
After months of litigation, the defendants filed an amended motion to dismiss that raised lack of personal jurisdiction.
The trial judge sided with the defendants and dismissed the plaintiff’s claim. This appeal followed.
Appeal and Commentary
The plaintiff appealed and argued that Fla. R. Civ. P. 1.140 requires that the defense of lack of personal jurisdiction be raised either by motion or in the answer (aka the “responsive pleading”), otherwise it is waived.
After much discussion, Florida’s Second DCA held that an amended motion is considered a “new” motion and does not “relate back” to the original motion for purposes of Fla. R. Civ. P. 1.140. This is unique as Rule 1.140 requires that the enumerated defenses be raised in the “responsive pleading” (or the initial motion or pleading filed in the case by the defendant), or else those defenses are waived.
The policy behind this rule is that it requires a defendant to point out a jurisdictional defect in the lawsuit at the very beginning. This is important policy because it prevents a defendant from playing games on the most basic elements of the lawsuit.
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