If a Defendant Waives a Personal Jurisdiction Defense, a Court Cannot Dismiss for Lack of Personal Jurisdiction

Triffin v. Southeastern Pennsylvania Transportation Auth., 462 N.J. Super. 172 (App. Div. 2020). Judge Fisher issued the Appellate Division’s opinion on this appeal just eight days after it was argued. The issue was not complex.

Plaintiff sued several defendants for damages on a dishonored check. One of those defendants was the Southeastern Pennsylvania Transportation Authority (“SEPTA”). SEPTA answered without filing any separate defenses. By the time of trial, only SEPTA remained as a defendant, as one other defendant defaulted and the other was admittedly erroneously named, though not formally dismissed until after the trial proceeding involving SEPTA.

Before hearing testimony, the trial judge “questioned on his own whether the court could exert personal jurisdiction over SEPTA. He “concluded without any sworn statements” (other than plaintiff’s affidavit of diligent inquiry, which said only that SEPTA did “not have a place of business in New Jersey,” that the court lacked personal jurisdiction over SEPTA. Plaintiff appealed, and today the Appellate Division reversed.

The first issue was whether, as SEPTA claims, plaintiff’s appeal was untimely. It was filed 77 days after the trial judge ruled that there was no personal jurisdiction over SEPTA. There is a 45-day deadline for filing a notice of appeal. But Judge Fisher rightly noted that that clock does not begin to run until there is a final judgment at the trial level, and finality requires that “all issues as to all parties are resolved.”

A default judgment was not entered against the defaulting defendant until after the SEPTA trial date. And the erroneously-named defendant was not formally dismissed until after that. Plaintiff filed his notice of appeal exactly 45 days after that latter event. It was timely.

Judge Fisher then turned to the jurisdiction issue. He highlighted the distinction between personal jurisdiction, which can be waived, and subject matter jurisdiction (not at issue here) which cannot. “Once the defense of lack of personal jurisdiction is waived, there is no bar– constitutional or otherwise– to a court’s adjudication of a claim against a non-resident defendant.”

To avoid waiver of that defense, SEPTA had to plead it in its Answer. It did not do so. Even when the trial judge raised the issue, SEPTA’s counsel “did not take the hint and assert a lack of personal jurisdiction.” Instead, counsel addressed only venue.

“If the defendant could no longer move to dismiss for lack of personal jurisdiction, the judge could not raise and pursue the same motion on his own.” But even if he could, Judge Fisher added, reversal was required because there was no sufficient evidence to support the trial judge’s ruling. He and the parties’ counsel expressed only “their own personal beliefs about SEPTA’s contacts with New Jersey.” Accordingly, the dismissal of SEPTA was reversed, and the case was remanded for trial.