Timely Assertion and Waiver of Personal Jurisdiction Defenses under Fed. R. Civ. P. 12: Ali Hamza v. Khalifa Hifter

Introduction

In Ali Hamza v. Khalifa Hifter, 4th Cir. No. 24-1422 et seq. (Decided June 5, 2025), the Fourth Circuit resolved consolidated appeals arising from six related lawsuits against Khalifa Hifter, the commander of Libya’s National Army. Three groups of plaintiffs—families of alleged victims of Hifter’s alleged torture and related conduct—sued in the Eastern District of Virginia under the Torture Victim Protection Act. Hifter moved to dismiss each case on multiple grounds, including subject-matter jurisdiction, service of process, and failure to state a claim. Crucially, he omitted a personal-jurisdiction challenge in his first two pre-answer motions. After extensive pretrial proceedings and consolidation, the district court granted summary judgment for Hifter on lack of personal jurisdiction in all cases, dismissing the suits with prejudice. Plaintiffs appealed, and Hifter cross-appealed. The Fourth Circuit’s published opinion by Judge Heytens (joined by Judges Rushing and Floyd) examines waiver of personal-jurisdiction defenses under Rule 12, the scope of consolidation orders, and the boundaries of due-process jurisdiction under Rule 4(k).

Summary of the Judgment

The Fourth Circuit issued a multipart disposition:

Cross-appeals dismissed (Nos. 24-1425, 24-1427, 24-1429): Hifter sought affirmance on alternative grounds but did not challenge the district court’s bottom-line dismissal. Under Harriman v. Associated Industries Ins. Co., those cross-appeals were “unnecessary and not properly taken.”
Reversal and remand in Nos. 24-1422 & 24-1426: Hifter’s pre-answer motions in those cases omitted any Rule 12(b)(2) personal-jurisdiction challenge. Under Fed. R. Civ. P. 12(h)(1), he waived the defense when he filed his first motions to dismiss. The consolidation order did not revive it. The Fourth Circuit reversed the grant of summary judgment and remanded for further proceedings.
Vacatur and remand in No. 24-1423: Hifter timely raised a Rule 12(b)(2) challenge in the third-filed case. The plaintiffs failed to make a prima facie showing of either general or specific jurisdiction under Rule 4(k)(1). The dismissal was correct but must be restated as without prejudice, because a court that lacks personal jurisdiction can only dismiss a case, not dispose of it with prejudice.

Analysis

Precedents Cited

Ruhrgas AG v. Marathon Oil Co. (526 U.S. 574, 577 (1999)) — establishes that a court without personal jurisdiction must dismiss rather than rule on the merits.
Grayson v. Anderson (816 F.3d 262, 267 (4th Cir. 2016)) — holds that a personal-jurisdiction challenge must be affirmatively raised or it is waived.
Combs v. Bakker (886 F.2d 673, 676 (4th Cir. 1989)) — places the burden on the plaintiff to prove personal jurisdiction by a preponderance of the evidence once properly challenged.
Fed. R. Civ. P. 12(h)(1) — provides that certain defenses, including lack of personal jurisdiction under Rule 12(b)(2), are waived if omitted from a pre-answer motion.
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee (456 U.S. 694 (1982)) — confirms waiver of personal-jurisdiction objections not timely made and ties personal jurisdiction to due process.
Daimler AG v. Bauman (571 U.S. 117 (2014)) — limits general jurisdiction to a defendant’s domicile or “essentially at home” forums.
Ford Motor Co. v. Montana Eighth Judicial District Court (592 U.S. 351 (2021)) — clarifies that specific jurisdiction requires claims to “arise out of or relate to” the defendant’s forum contacts.
Ex parte McCardle (74 U.S. 506 (1868)) — teaches that a lack of jurisdiction compels dismissal, not merits adjudication.
Southern Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands (713 F.3d 175 (4th Cir. 2013)) — holds that dismissals for lack of jurisdiction must be without prejudice.

Legal Reasoning

The Fourth Circuit’s reasoning unfolds in two parts: waiver under Rule 12 and the due-process boundaries of personal jurisdiction under Rule 4(k).

1. Waiver of Personal-Jurisdiction Defense (Fed. R. Civ. P. 12)

• One “bite” at the apple: Rule 12(g)(2) permits only one pre-answer motion to dismiss.

• Waiver provision: Rule 12(h)(1) mandates that defenses under Rules 12(b)(2)–(5) are waived if omitted from the first pre-answer motion.

• Application to Nos. 24-1422 & 24-1426: Hifter’s initial motions invoked Rules 12(b)(1), (b)(5), and (b)(6), but not (b)(2). His later motion in the third case came too late to revive the defense in the earlier-filed matters. A consolidation order excluding dispositive motions cannot undo the waiver.

2. Due-Process Limits on Jurisdiction (Fed. R. Civ. P. 4(k))

• Rule 4(k)(1): State-law analogue — the plaintiff must show that a Virginia court of general jurisdiction could exercise power over the defendant.

• General jurisdiction: Permits suits on any claim only if the defendant is “at home”—for an individual, at domicile. The plaintiffs could not identify any evidence that Hifter domiciled in Virginia after 2011.

• Specific jurisdiction: Requires that the cause of action “arise out of or relate to” forum contacts. The plaintiffs pointed to property ownership, retention of counsel, and a consolidated discovery plan in Virginia. None bore a causal or substantive link to Hifter’s alleged Libyan conduct. Subsequent litigation contacts cannot support specific jurisdiction.

• Rule 4(k)(2): Although available for federal‐law claims when no state court would have jurisdiction, it was not invoked by the plaintiffs and is forfeited on appeal.

Impact on Future Cases and the Law

1. Reinforces strict adherence to Rule 12’s timing requirements. Parties must decide early which defenses they will press; waiver is absolute.

2. Clarifies that consolidation orders—even those styled broadly—cannot revive waived defenses unless expressly re-asserted.

3. Reaffirms the high bar for establishing general jurisdiction (domicile or “at home”) and the necessity that specific jurisdiction claims have a direct relationship between the forum contacts and the cause of action.

4. Signals that district courts and litigants must differentiate and affirmatively invoke both Rule 4(k)(1) and Rule 4(k)(2) pathways, or risk forfeiture.

Complex Concepts Simplified

Personal Jurisdiction: A court’s power over a defendant. Without it, any judgment is void.
General vs. Specific Jurisdiction:
- General: Defendant is “at home” in the forum (e.g., domicile).
- Specific: Claim arises from the defendant’s forum activities.
Waiver (Rule 12(h)(1)): Omitting certain defenses in your first motion to dismiss means you lose them forever in that case.
Consolidation: Pools cases for efficiency, but does not merge procedural rights absent clear terms.
Prima Facie Showing: Enough evidence at the summary judgment stage for a court to believe it could find jurisdiction after a full hearing.
Dismissal with vs. without Prejudice:
- With prejudice: ends the case on the merits—res judicata applies.
- Without prejudice: procedural dismissal, case can be re-filed.

Conclusion

Ali Hamza v. Khalifa Hifter cements two fundamental lessons in federal civil procedure: defendants must assert personal-jurisdiction objections in their first pre-answer motion or waive them, and courts deprived of jurisdiction may only dismiss without prejudice. The decision underscores the interplay between Fed. R. Civ. P. 12’s waiver rules and Rule 4(k)’s due‐process limits, clarifying that consolidation cannot salvage a waived defense. Future litigants will take heed: timely, precise invocation of jurisdictional defenses is non‐negotiable, and strategic choices at the outset determine the scope of a federal court’s power to adjudicate.