Waiver of Personal Jurisdiction Defense Under Rule 12(h)(1): Timeliness Requirement Clarified

Introduction

Aida Elzagally v. Khalifa Hifter (Nos. 24-1422 et seq.) is a consolidated appeal arising from multiple Torture Victim Protection Act suits brought in the Eastern District of Virginia against Khalifa Hifter, commander of the Libyan National Army. Three groups of U.S.-based Libyan families sued Hifter for alleged acts of torture and extrajudicial killing in Libya. After piecemeal motions to dismiss and a two-year discovery and pretrial period, the district court granted summary judgment for Hifter on lack of personal jurisdiction and dismissed all cases with prejudice. The plaintiffs and Hifter each appealed. The Fourth Circuit’s opinion, delivered June 5, 2025, clarifies how Federal Rule of Civil Procedure 12’s timing and waiver provisions govern personal jurisdiction defenses—and confirms that untimely assertions of that defense cannot be revived by later consolidation or new counsel.

Summary of the Judgment

The Fourth Circuit issued a single published opinion resolving six appeals and cross-appeals:

Cross-appeals (Nos. 24-1425, 24-1427, 24-1429) were dismissed as unnecessary because Hifter sought only affirmance of favorable judgments.
In Nos. 24-1422 and 24-1426, Hifter’s pre-answer motions omitted Rule 12(b)(2) personal jurisdiction, triggering waiver under Rule 12(h)(1). The court reversed the summary judgments and remanded for further proceedings.
In No. 24-1423, Hifter properly raised Rule 12(b)(2) in a timely motion; the plaintiffs failed to make a prima facie showing of either general or specific jurisdiction in Virginia; summary judgment was affirmed as to lack of jurisdiction but the dismissal was vacated and remanded to reflect a dismissal without prejudice.

Analysis

Precedents Cited

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) – Emphasizes that without personal jurisdiction a court must dismiss rather than reach the merits.
Grayson v. Anderson, 816 F.3d 262 (4th Cir. 2016) – Holds the defendant must affirmatively raise personal jurisdiction challenges or waive them.
Combs v. Bakker, 886 F.2d 673 (4th Cir. 1989) – Places on the plaintiff the burden to prove jurisdiction by a preponderance of the evidence once the defense is properly raised.
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinée, 456 U.S. 694 (1982) – Confirms that an untimely objection to personal jurisdiction is waived.
Ex parte McCardle, 74 U.S. 506 (1868) – States that lacking jurisdiction, a court may only dismiss and cannot adjudicate merits.
Southern Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013) – Explains dismissals for lack of jurisdiction must be without prejudice.

Legal Reasoning

Federal Rule of Civil Procedure 12 establishes how and when defenses must be presented:

Rule 12(b) allows seven specific defenses—among them, lack of personal jurisdiction (12(b)(2)).
Rule 12(g)(2) permits only one pre-answer motion, aggregating all available Rule 12(b) defenses in that motion.
Rule 12(h)(1) provides that any defense under 12(b)(2)–(5) omitted from the pre-answer motion is waived.

In two of the suits (Nos. 24-1422 and 24-1426), Hifter filed pre-answer motions citing only subject-matter jurisdiction, service defects, and failure to state a claim. He never invoked Rule 12(b)(2). Under Rule 12(h)(1), his personal jurisdiction defense was waived at that moment—even though later counsel raised it in a separate consolidated case. The Fourth Circuit refused to recognize any mechanism (consolidation or later counsel’s timely motion) that could revive a waived defense.

In the third suit (No. 24-1423), Hifter’s pre-answer motion properly invoked Rule 12(b)(2) and argued he lacked contacts with Virginia. The plaintiffs failed to show general jurisdiction (domicile or “at home” contacts) or specific jurisdiction (no Virginia-related conduct giving rise to the tort claims). The court affirmed dismissal for lack of jurisdiction but vacated the dismissal with instructions to note it was without prejudice.

Impact

This decision produces several important effects:

Reinforces the strict application of Rule 12(h)(1) waiver: personal jurisdiction must be asserted in the first pre-answer motion or it is gone for good in that case.
Clarifies that later consolidation of cases—even when parties agree to treat them together—cannot restore a defense already waived.
Warns litigants and counsel to map out jurisdictional defenses at the outset, lest they lose the opportunity to challenge the court’s power over them.
Affirms that dismissals for lack of jurisdiction are always without prejudice, preserving plaintiffs’ right to refile where jurisdiction may properly exist.

Complex Concepts Simplified

Personal Jurisdiction: A court’s legal power over a defendant’s person. If absent, the court must dismiss without considering the case’s merits.
General vs. Specific Jurisdiction:
- General jurisdiction exists when a defendant is “at home” (domicile for individuals, principal place of business for corporations).
- Specific jurisdiction exists when the cause of action “arises out of or relates to” the defendant’s contacts with the forum.
Rule 12(b) Motions: Pre-answer motions to dismiss on enumerated defenses (e.g., subject matter, personal jurisdiction, service, failure to state a claim).
Rule 12(h)(1) Waiver: If a defendant omits a defense listed in 12(b)(2)–(5) from its single pre-answer motion, that defense is lost.

Conclusion

Aida Elzagally v. Khalifa Hifter cements the principle that personal jurisdiction defenses must be timely and expressly raised under Federal Rule 12(b)(2), or they are irrevocably waived under Rule 12(h)(1). Consolidating related suits cannot rescue a defense already forfeited. The Fourth Circuit’s careful parsing of Rule 12’s procedural commands underscores the importance of front-loading jurisdictional challenges and ensures that district courts only consider personal jurisdiction when properly invoked. This ruling will guide future litigants and practitioners in structuring their pre-answer motions and in understanding the finality of procedural waivers.