Timely Preservation of Personal Jurisdiction Defense and Waiver under Federal Rule of Civil Procedure 12

Introduction

In Aida Elzagally v. Khalifa Hifter, Nos. 24-1422, 24-1423, 24-1426 (4th Cir. June 5, 2025), the United States Court of Appeals for the Fourth Circuit addressed the often‐overlooked but critical procedural defense of personal jurisdiction under Federal Rule of Civil Procedure 12. The three consolidated appeals stem from separate Torture Victim Protection Act suits filed by Libyan litigants against Khalifa Hifter, commander of the Libyan National Army. Key issues included whether Hifter had properly preserved a challenge to the district court’s personal jurisdiction, how consolidation of related cases affects procedural waivers, and what evidence satisfies a plaintiff’s prima facie burden to establish jurisdiction.

Plaintiffs in each case sought damages for alleged torture and human‐rights abuses. The District Court for the Eastern District of Virginia granted summary judgment in Hifter’s favor on personal jurisdiction grounds in all three suits, dismissed them with prejudice, and entered judgment for the defendant. Plaintiffs appealed, and Hifter cross‐appealed on alternative grounds. The Fourth Circuit, in an opinion by Judge Heytens, reversed and remanded two of the appeals, dismissed three cross‐appeals, and vacated and remanded one appeal with instructions.

Summary of the Judgment

Cross‐Appeals Dismissed: Nos. 24-1425, 24-1427, 24-1429 were dismissed because Hifter did not seek to alter the district court’s bottom‐line judgments, only to affirm them on alternate grounds.
Reversal and Remand (Waiver of Jurisdiction Defense): In Nos. 24-1422 and 24-1426, the Court held that Hifter had filed pre-answer motions under Rule 12(b)(1), (5) and (6) but omitted Rule 12(b)(2). Under Rules 12(g)(2) and 12(h)(1), any personal jurisdiction defense not included in the first pre-answer motion is waived. Accordingly, the judgments were reversed and remanded for further proceedings.
Vacatur and Remand (Proper Challenge but Dismissal Without Prejudice): In No. 24-1423, Hifter timely asserted a Rule 12(b)(2) defense and the plaintiffs failed to make a prima facie showing of either general or specific jurisdiction in Virginia. The Court affirmed the lack of jurisdiction but vacated the dismissal “with prejudice” and instructed the district court to reissue an order dismissing without prejudice.

Analysis

1. Precedents Cited

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999) – Reiterated that without personal jurisdiction a court “has no authority” to decide on the merits and must dismiss.
Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016) – Held that a defendant must timely raise a personal jurisdiction challenge or waive it.
Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989) – Placed the burden on the plaintiff to prove personal jurisdiction by a preponderance once challenged.
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 705 (1982) – Emphasized that failure to enter a timely objection to personal jurisdiction constitutes waiver under Rule 12(h)(1).
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) – Defined the limited “all‐purpose” jurisdiction that only exists where a defendant is “essentially at home” (domicile for individuals).
Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021) – Clarified that “specific” jurisdiction requires a claim to “arise out of or relate to” the defendant’s forum contacts.

2. Legal Reasoning

The Court’s analysis unfolded in two steps:

a. Waiver Under Rule 12: Rule 12(g)(2) permits only one pre-answer motion. Rule 12(h)(1) provides that any defense listed in Rules 12(b)(2)–(5) not included in the first pre-answer motion is waived. Hifter’s motions in Nos. 24-1422 and 24-1426 invoked Rules 12(b)(1), (5), (6) but omitted Rule 12(b)(2). His later assertion of Rule 12(b)(2) in No. 24-1423 could not retroactively preserve the defense in earlier cases, nor could a later consolidation order that expressly excluded dispositive motions.

b. Jurisdictional Analysis in No. 24-1423: Because Hifter had timely invoked Rule 12(b)(2), the Court considered personal jurisdiction under Rule 4(k)(1)(A). Plaintiffs bore the burden to make a prima facie showing. Under Virginia law (which extends to the full reach of due‐process limits), general jurisdiction requires domicile in Virginia—unsupported here. Specific jurisdiction requires that the claims “arise out of or relate to” forum contacts. The plaintiffs pointed to Hifter’s past residence, property ownership, counsel retention, and consolidated‐case discovery, none of which established a sufficient nexus to alleged torture in Libya. The Court declined to consider additional theories (e.g., PR‐firm contracts) that were not in the summary-judgment record or raised below.

3. Impact

Litigants and counsel must be meticulous in asserting all available defenses—including personal jurisdiction—at the earliest stage. Omitting Rule 12(b)(2) from the first pre-answer motion effectively extinguishes that defense for good.
Consolidation orders do not cure procedural defects or revive waived defenses. When multiple related actions are pending, each stand alone pre-answer motion demands its own comprehensive approach.
Plaintiffs face a strict prima facie burden to show jurisdiction in a foreign‐forum suit. Absent clear evidence of domicile or a direct causal link between forum contacts and the claimed wrong, courts will dismiss for lack of jurisdiction.
Trial courts should ensure final judgments correctly reflect that dismissals for lack of jurisdiction are without prejudice; a with-prejudice dismissal invades the merits and exceeds jurisdiction.

Complex Concepts Simplified

Personal vs. Subject‐Matter Jurisdiction: Personal jurisdiction refers to a court’s power over a party. Subject-matter jurisdiction is a court’s power to hear a particular type of case.
General (All-Purpose) Jurisdiction: Exists when a defendant is “essentially at home” in the forum—usually based on domicile (for individuals) or place of incorporation/operations (for corporations).
Specific (Case-Linked) Jurisdiction: Allows jurisdiction over a defendant for claims that arise out of or relate to the defendant’s forum contacts—must be a direct connection between forum activities and the litigation.
Rule 12(b) and Waiver: Rule 12(b) lists defenses that may be raised by motion before answer. Rule 12(g)(2) limits defendants to a single pre-answer motion, and Rule 12(h)(1) declares that any jurisdictional defense not raised in that motion is forfeited forever.
Prima Facie Showing: When personal jurisdiction is challenged, the plaintiff must present enough evidence that, if believed, would justify jurisdiction absent a full evidentiary hearing.

Conclusion

Aida Elzagally v. Khalifa Hifter establishes a clear, binding precedent on procedural vigilance and the preservation of personal jurisdiction defenses. Defendants must assert Rule 12(b)(2) at the first available opportunity or lose the defense entirely. Consolidation does not resurrect waived defenses. Plaintiffs in foreign-forum suits similarly must come forward with concrete, nexus-specific evidence to satisfy their prima facie burden. Finally, courts should carefully designate jurisdictional dismissals as “without prejudice” to avoid inadvertently reaching merits and thus exceeding the bounds of their authority. This decision will guide both strategic motion practice and rigorous jurisdictional analysis in future federal litigation.