Waiver and Preservation of Personal Jurisdiction Defenses under Federal Rule 12 and the Limits of Consolidation

Introduction

Muna al-Suyid v. Khalifa Hifter is a consolidated set of appeals arising from three related lawsuits in the U.S. District Court for the Eastern District of Virginia. Each suit, brought by multiple survivors and estate representatives of alleged victims of torture, named Khalifa Hifter—commander of the Libyan National Army—as defendant under the Torture Victim Protection Act. Facing motions to dismiss and later cross-motions for summary judgment, the parties disputed whether the district court had personal jurisdiction over Hifter and whether he had waived any objection to jurisdiction. The Fourth Circuit’s June 5, 2025 opinion, authored by Judge Heytens and joined by Judges Rushing and Floyd, clarifies:

When and how a defendant waives a personal jurisdiction defense under Rules 12(g), 12(h) and 12(b).
That consolidation of related cases cannot revive a defense waived in an earlier pre-answer motion.
The proper analysis of general versus specific personal jurisdiction under Rule 4(k) and the Due Process Clause.
The mandatory duty of a court to dismiss for lack of jurisdiction without prejudice, rather than reach the merits.

Summary of the Judgment

The Fourth Circuit issued a single published opinion in six appeals:

Cross-appeals in three cases (Nos. 24-1425, 24-1427, 24-1429) were dismissed as unnecessary, because Hifter did not seek to change the district court’s dismissals with prejudice.
In two cases (Nos. 24-1422, 24-1426), the court reversed and remanded. Hifter had filed pre-answer motions invoking Rules 12(b)(1), 12(b)(5) and 12(b)(6) but omitted a 12(b)(2) personal jurisdiction challenge. By Rule 12(h)(1), he waived that defense, and the district court erred in granting summary judgment on personal jurisdiction grounds.
In one case (No. 24-1423), the court held that Hifter properly preserved a Rule 12(b)(2) challenge, so the district court correctly granted summary judgment for lack of personal jurisdiction. However, the Fourth Circuit vacated the “with prejudice” dismissal and remanded with directions to dismiss “without prejudice,” because a court without jurisdiction cannot enter a merits-based, final judgment.

Analysis

1. Precedents Cited

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) – Courts without jurisdiction must dismiss without ruling on the merits.
Grayson v. Anderson, 816 F.3d 262 (4th Cir. 2016) – Personal jurisdiction defenses must be affirmatively raised; burden shifts to plaintiff once properly challenged.
Fed. R. Civ. P. 12(g), 12(h) – A defendant gets only one pre-answer motion to dismiss and forfeits defenses omitted from it.
Combs v. Bakker, 886 F.2d 673 (4th Cir. 1989) – Plaintiff must prove jurisdictional facts by a preponderance of the evidence once challenged.
Harriman v. Associated Indus. Ins. Co., 91 F.4th 724 (4th Cir. 2024) – Cross-appeals that only seek affirmance of a favorable judgment must be dismissed.
Daimler AG v. Bauman, 571 U.S. 117 (2014) – General jurisdiction over individuals exists only at domicile.
Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021) – Specific jurisdiction requires that claims arise out of or relate to defendant’s forum contacts.
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinée, 456 U.S. 694 (1982) – Failure to timely object to personal jurisdiction is waiver under Rule 12(h).
Ex parte McCardle, 74 U.S. 506 (1868) – A court lacking jurisdiction may only dismiss the case.

2. Legal Reasoning

The Fourth Circuit’s ruling turns on two interlocking strands of procedural and constitutional law:

a. Waiver Under Rule 12

Rule 12(b) allows a pre-answer motion to plead the seven enumerated defenses, including lack of personal jurisdiction (12(b)(2)).
Rule 12(g)(2) and 12(h)(1) provide that a defendant may file only one pre-answer motion and waives any defenses listed in 12(b)(2)–(5) that were available but omitted.
In Nos. 24-1422 and 24-1426, Hifter’s first motions invoked only Rules 12(b)(1), (b)(5) and (b)(6). He never mentioned 12(b)(2) or argued the court lacked constitutional power over him. Hence, Rule 12(h)(1) effected waiver.
Consolidation of the three cases for discovery and pretrial matters (excluding dispositive motions) could not revive a defense already waived months earlier.

b. Analysis of Properly Preserved Challenge

In No. 24-1423, Hifter explicitly invoked Rule 12(b)(2) and briefed a classic personal jurisdiction argument—absent Virginia contacts and domicile.
Once jurisdiction is challenged, the plaintiff must make a prima facie showing. No evidentiary hearing was held, so the district court and this Court review the written record.
Federal Rule 4(k)(1) governs: whether Virginia’s courts of general jurisdiction could assert jurisdiction consistent with due process.
General jurisdiction: limited to the defendant’s domicile. No evidence Hifter remained domiciled in Virginia after 2011.
Specific jurisdiction: claims must arise out of or relate to forum contacts. The plaintiffs pointed to property ownership, hiring local counsel and joint discovery—none of which bore a nexus to alleged acts of torture in Libya. Post-suit litigation activity cannot support specific jurisdiction.
No jurisdictional discovery was ordered because plaintiffs never requested it below and had deposed Hifter without exploring domicile or other contacts.
Because jurisdiction was lacking, the district court’s “with prejudice” dismissal was converted to “without prejudice” on remand. A court without jurisdiction lacks power to adjudicate the merits.

3. Impact

This decision carries several lessons for litigators and the courts:

Precision in Rule 12 Practice: Defendants must affirmatively plead personal jurisdiction under Rule 12(b)(2) in their one pre-answer motion or risk irrevocable waiver.
Limits of Consolidation: Merging related cases for discovery does not reset procedural timelines or revive waived defenses.
Due Process Jurisdiction Tests: Reinforces that general jurisdiction over individuals is tethered to domicile and that specific jurisdiction demands a factual and causal nexus between alleged wrongdoing and forum contacts.
Judicial Economy vs. Jurisdictional Mandates: Courts may wish to avoid relitigation in a more convenient forum, but constitutional limits on personal jurisdiction cannot be circumvented by equitable considerations.
Form Over Substance: Even meritorious defenses or strong equities cannot substitute for the strict procedural requirements of Rule 12.

Complex Concepts Simplified

Personal Jurisdiction: A court’s power to bind a defendant personally with its judgment. Requires minimum contacts with the forum and fairness under the Due Process Clause.
General vs. Specific Jurisdiction:
- General (all-purpose): The defendant’s home turf—domicile for individuals.
- Specific (case-linked): The lawsuit must arise out of or relate to the defendant’s forum contacts.
Rule 12(b) Motions: Defenses to be raised before an answer. One shot only. Omit a defense and you lose it.
Waiver vs. Forfeiture: Waiver is an intentional relinquishment of a known right—here, automatic by Rule 12’s design—while forfeiture is a failure to make timely assertion.
Dismissal With vs. Without Prejudice: “With prejudice” ends a plaintiff’s right to refile; “without prejudice” preserves the claim but reflects that jurisdiction was lacking.

Conclusion

Muna al-Suyid v. Khalifa Hifter clarifies the fine balance between procedural discipline and constitutional limits on judicial power. A defendant’s failure to invoke lack of personal jurisdiction in a single pre-answer motion under Rule 12(b)(2) results in irrevocable waiver—even if a related case later pressing the same issue is consolidated. Where personal jurisdiction is timely challenged, plaintiffs must come forward with factual proofs linking the defendant’s forum contacts to the claim, whether under general or specific jurisdiction doctrines. And a court that lacks personal jurisdiction over a defendant must dismiss the case—“without prejudice”—and may not reach the merits. This decision underscores that procedure is not a mere formality: it is a constitutional gatekeeper of the court’s power to decide.