Timely Assertion of Personal Jurisdiction Defenses and Dismissal Protocols: 4th Circuit Clarification in Ali Hamza v. Khalifa Hifter

Introduction

This consolidated appeal, decided June 5, 2025 by the United States Court of Appeals for the Fourth Circuit (Judge Heytens, joined by Judges Rushing and Floyd), arises from three related actions brought under the Torture Victim Protection Act against Khalifa Hifter, commander of the Libyan National Army. Multiple Libyan plaintiffs sued Hifter in the Eastern District of Virginia, alleging he orchestrated torture and extrajudicial killings. Hifter moved to dismiss each suit on several grounds, including lack of personal jurisdiction. The district court granted summary judgment for Hifter on personal-jurisdiction grounds in two cases, dismissed a third suit with prejudice, and denied cross-motions in part. All parties appealed. The Fourth Circuit’s decision clarifies when—and how—personal jurisdiction defenses must be asserted, how consolidation does (and does not) affect waiver, and the proper form of a dismissal for lack of jurisdiction.

Summary of the Judgment

Cross-appeals dismissed. Hifter’s cross-appeals in Nos. 24-1425, 24-1427, and 24-1429 were deemed unnecessary because they merely asked this Court to affirm the district court’s dismissal in his favor.
Waiver in two cases. In Nos. 24-1422 and 24-1426, Hifter had filed pre-answer motions invoking Rule 12(b)(1), (5), and (6) but not Rule 12(b)(2). Under Fed. R. Civ. P. 12(h)(1), he thereby waived any personal jurisdiction defense. The Fourth Circuit reversed those judgments and remanded for further proceedings.
Proper dismissal in one case. In No. 24-1423, Hifter timely invoked Rule 12(b)(2). Applying Virginia’s long-arm statute (via Rule 4(k)(1)) and the Due Process Clause, the court held that plaintiffs failed to make a prima facie showing of either general or specific personal jurisdiction. The Fourth Circuit affirmed the lack of jurisdiction but vacated the with-prejudice dismissal, directing the district court to reenter judgment as “without prejudice.”

Analysis

Precedents Cited

Fed. R. Civ. P. 12(h)(1) (waiver of omitted defenses listed in Rule 12(b)(2)–(5)).
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) – Jurisdictional challenges are fundamental and must be raised timely.
Combs v. Bakker, 886 F.2d 673 (4th Cir. 1989) – Plaintiff bears burden to prove personal jurisdiction once raised.
Daimler AG v. Bauman, 571 U.S. 117 (2014) – General jurisdiction requires domicile or “at home” presence.
Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021) – Distinction between general and specific jurisdiction.
Ex parte McCardle, 74 U.S. 506 (1868) – A court lacking personal jurisdiction may only announce that fact and dismiss the suit.

Legal Reasoning

The Fourth Circuit’s reasoning proceeds in three steps:

Assess waiver under Rule 12. A defendant who files a pre-answer motion under Rule 12(b)(1), (3), (4), (5), or (6) but omits Rule 12(b)(2) “waives” the personal jurisdiction defense. Hifter’s motions in two of the cases raised only subject-matter jurisdiction, service, and merits-based defenses; he never cited Rule 12(b)(2) or argued lack of constitutional power to bind him. As a result, his personal jurisdiction argument came too late and was waived.
Consolidation does not revive waived defenses. The district court reasoned that later consolidation of the three suits preserved Hifter’s jurisdictional challenge, but the Fourth Circuit held there is no rule allowing consolidation orders to restore an omitted Rule 12(b)(2) defense. Once waived, the right is gone.
Correct application in the timely-challenged case. In the third-filed case (No. 24-1423), Hifter properly invoked Rule 12(b)(2). The court applied Virginia’s long-arm statute via Fed. R. Civ. P. 4(k)(1)(A) and found:
- No general jurisdiction: Hifter’s past residence and property holdings in Virginia, and U.S. citizenship, did not render him “essentially at home” after his 2011 departure to Libya.
- No specific jurisdiction: None of the plaintiffs’ claims “arose out of or related to” Hifter’s Virginia contacts. Post-filing litigation conduct (hiring local counsel, agreeing to discovery plans) was insufficient to establish case-linked jurisdiction.
Accordingly, the district court properly dismissed for lack of personal jurisdiction, but it erred in stating the dismissal was “with prejudice.” Under Ex parte McCardle and Southern Walk, an in-personam dismissal must be entered “without prejudice.”

Impact

This decision reinforces several important principles:

Strict enforcement of pre-answer deadlines. Defendants must identify personal jurisdiction defenses by Rule 12(b)(2) or lose them.
Consolidation does not extend or revive defenses. Coordination of related cases for discovery or pretrial does not change waiver rules.
Dismissals for lack of personal jurisdiction must be without prejudice. Courts cannot merge jurisdictional dismissals with on-the-merits judgments.
Reaffirmed Due Process limits on jurisdiction. A nonresident defendant with only tenuous ties to a forum cannot be haled into its courts absent a substantial nexus between his contacts and the cause of action.

Complex Concepts Simplified

Personal Jurisdiction: The power of a court over a defendant’s person. Courts must satisfy state-law long-arm statutes and the federal Constitution.
General vs. Specific Jurisdiction: General jurisdiction: Court has authority over a defendant for all claims if the defendant is “essentially at home” in the forum (for individuals, usually domicile).
Specific jurisdiction: Court has authority only over claims arising from or related to the defendant’s forum contacts.
Fed. R. Civ. P. 12(b)(2): Rule allowing a pre-answer motion to dismiss for lack of personal jurisdiction.
Fed. R. Civ. P. 12(h)(1): Rule providing that defenses in Rules 12(b)(2)–(5) are waived if omitted from a pre-answer motion to dismiss.
Dismissal “With Prejudice” vs. “Without Prejudice”: With prejudice means on the merits—plaintiff cannot re-file.
Without prejudice means jurisdictional dismissal only—plaintiff may re-file if jurisdiction is later established.

Conclusion

The Fourth Circuit’s decision in Ali Hamza v. Khalifa Hifter establishes that personal jurisdiction defenses must be timely raised under Rule 12(b)(2) or face irrevocable waiver. Consolidation orders cannot rescue omitted defenses, and dismissals for lack of personal jurisdiction must be entered without prejudice. The ruling underscores the fragile yet critical nature of personal jurisdiction challenges and reaffirms due process limits on American courts’ authority over foreign-based actors.