Zelson v. Thomforde, 412 F.2d 56 (3d Cir. 1969). · Go Syfert
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Zelson v. Thomforde, 412 F.2d 56 (3d Cir. 1969). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1981 · 2 courts · …because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object ... a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion ... or otherwise at p. 59 ✓
cited 2× by 2 distinct cases, last quoted 2005 · …generally, courts should not raise sua sponte nonjurisdictional defenses not raised by the parties. at p. 58 ⚠ not in text
79 citation events (40 in the last 25 years) across 29 distinct courts.
Strongest positive: PXP Producing Co. LLC v. MitEnergy Upstream LLC (delch, 2025-06-26)
Treatment trajectory · 1969 → 2026 · click a year to view as-of
1969 1997 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) PXP Producing Co. LLC v. MitEnergy Upstream LLC
Del. Ch. · 2025 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
the raising of the defense of the statute of limitations, is a personal privilege of the defendant.
discussed Cited as authority (verbatim quote) CORSENTINO v. MEYER'S RV CENTERS LLC
D.N.J. · 2020 · quote attribution · 1 verbatim quote · confidence high
personal jurisdiction may be conferred by consent of the parties.
examined Cited as authority (verbatim quote) In Re Grand Jury Proceedings (Wright Ii), Honorable Robert A. Wright, Judge of the Court of Common Pleas of the Thirty-Second Judicial District of the Commonwealth of Pennsylvania
2d Cir. · 1981 · signal: see also · quote attribution · 1 verbatim quote · confidence high
because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object ... a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion ... or otherwise
examined Cited as authority (verbatim quote) In re Grand Jury Proceedings
3rd Cir. · 1981 · signal: see also · quote attribution · 1 verbatim quote · confidence high
because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object ... a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion ... or otherwise
discussed Cited as authority (rule) Ocimum Biosolutions (India) Limited v. Prestige Biopharma IDC
D. Del. · 2025 · confidence medium
(Id.) Defendants need to raise their own limitations defense because “[t]he raising of the defense of the statute of limitations … is a personal privilege of the defendant . . . .” Zelson v. Thomforde, 412 F.2d 56, 59 (3rd Cir. 1969).
cited Cited as authority (rule) Ocimum Biosolutions (India) Limited v. LG Corp
D. Del. · 2024 · confidence medium
“The raising of the defense of the statute of limitations, * * * is a personal privilege of the defendant.” Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969) (ellipsis in original).
discussed Cited as authority (rule) WEINMANN v. CONTRACT LAND STAFF, LLC
W.D. Pa. · 2023 · confidence medium
However, the Court finds that CLS did not waive the defense of personal jurisdiction, which must be “timely asserted by motion or answer.” Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969); see also Fed.
discussed Cited as authority (rule) BERNARD v. COSBY
D.N.J. · 2023 · confidence medium
Appx. 718, 719 (3d Cir. 2009) (omission in original) (quoting Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969)). 5 The Court expresses no opinion at this time as to whether such evidence would be admissible at trial.
cited Cited as authority (rule) EYAJAN v. NESCO RESOURCES LLC
W.D. Pa. · 2022 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969).
discussed Cited as authority (rule) HUBER v. SIMON'S AGENCY, INC.
E.D. Pa. · 2022 · confidence medium
LLC, 722 F. App'x 141 , 145 (3d Cir. 2018) (citing Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969)). of Land Use Appeals Golden Resorts LLLP, 10 F.4th 221 , 233 (3d Cir. 2021) (quoting Spokeo, Inc. v. Robins, 578 U. S. 330 , 340 (2016)) (internal quotations omitted).
discussed Cited as authority (rule) OLSEN v. RATNER COMPANIES L.C.
D.N.J. · 2021 · confidence medium
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.”); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969) (“[P]ersonal jurisdiction may be conferred by consent of the parties, expressly or by failure to object.” (citing Petrowski v. Hawkeye-Security Ins.
cited Cited as authority (rule) Hil Rizvi v. Maryland Department of Social
3rd Cir. · 2019 · confidence medium
Cir. 1986) (per curiam); Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969) (per curiam).
discussed Cited as authority (rule) Albert Robinson v. Section 23, Property Owners
3rd Cir. · 2019 · confidence medium
We recognize that “a court may not sua sponte dismiss for want of personal jurisdiction,” Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969), regardless of whether the plaintiff (like Robinson here) is proceeding in forma pauperis, see Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).
cited Cited as authority (rule) William Burns v. Victoria Femiani
3rd Cir. · 2019 · confidence medium
See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (12(b)(6) dismissal); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969).
discussed Cited as authority (rule) In Re Asbestos Products Liability Litigation (No. VI)
3rd Cir. · 2019 · confidence medium
Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982) (“Because the requirement of personal jurisdiction represents 12 first of all an individual right, it can, like other such rights, be waived.”); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969) (“[P]ersonal jurisdiction may be conferred by consent of the parties, expressly or by failure to object.” (citing Petrowski v. Hawkeye Security Ins.
discussed Cited as authority (rule) Peterson Manuel v. NRA Group LLC
3rd Cir. · 2018 · confidence medium
That is far from ideal, but objections that relate to subject matter jurisdiction “may be raised at any time by the parties, or by the court sua sponte ....” Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969). 6 24, 2016) and “the emerging consensus” of district courts in our Circuit, Manuel sufficiently “established invasion of privacy and nuisance by demonstrating that NRA used an autodialing device to send him automated calls, as set forth in the court’s [summary judgment] memorandum opinion[.]” (App. at 19.) The Court did not specify whether it considered NRA’s motion a fa…
cited Cited as authority (rule) Adams v. North West Co.
visuper · 2015 · confidence medium
“Jurisdictional objections to the court’s power over the person are waived unless timely asserted by motion or answer.” Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969).
cited Cited as authority (rule) Francis v. Bridgestone Corp.
D.V.I. · 2015 · confidence medium
Appx. 718, 719 (3d Cir. 2009) (quoting Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969)).
discussed Cited as authority (rule) Lincoln Benefit Life Co. v. AEI Life, LLC
D.N.J. · 2014 · confidence medium
Although a party may waive personal jurisdiction, see Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969), “it is well-settled that a party can never waive lack of subject matter jurisdiction.” Brown v. Phila.
discussed Cited as authority (rule) Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corporation
2d Cir. · 2010 · confidence medium
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-05 (1982); “R” Best Produce, Inc., v. DiSapio, 540 F.3d 115, 123 (2d Cir. 2008), a district court should not raise personal jurisdiction sua sponte when a defendant has appeared and consented, voluntarily or not, to the jurisdiction of the court, see, e.g., Popper v. Podhragy, 48 F. Supp. 2d 268, 271-72 (S.D.N.Y. 1998) (“Once waived, lack of personal jurisdiction may not be raised by the court sua sponte.”) (citing Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969)).
discussed Cited as authority (rule) Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corporation
2d Cir. · 2010 · confidence medium
Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-05 , 102 S.Ct. 2099 , 72 L.Ed.2d 492 (1982); “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 123 (2d Cir.2008), a district court should not raise personal jurisdiction sua sponte when a defendant has appeared and consented, voluntarily or not, to the jurisdiction of the court, see, e.g., Popper v. Podhragy, 48 F.Supp.2d 268, 271-72 (S.D.N.Y.1998) (“Once waived, lack of personal jurisdiction may not be raised by the court sua sponte.”) (citing Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.1969)).
cited Cited as authority (rule) PMA Capital Insurance v. Platinum Underwriters Bermuda, Ltd.
E.D. Pa. · 2009 · confidence medium
Ctr., 332 Fed.Appx. 718, 719 (3d Cir.2009) (“[Pjersonal jurisdiction may be conferred by consent of the parties ....”) (quoting Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969)).
discussed Cited as authority (rule) Jasper v. Bexar County Adult Detention Center
3rd Cir. · 2009 · confidence medium
However, “because personal jurisdiction may be conferred by consent of the parties ... a court may not sua sponte dismiss for want of personal jurisdiction.” Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969).
discussed Cited as authority (rule) Markocki v. Old Republic National Title Insurance
E.D. Pa. · 2007 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.1969). *417 Citizens claims that this Court does not have subject matter jurisdiction over Mar-kocki’s claim because Markocki has not exhausted her administrative remedies under the Pennsylvania Title Insurance Companies Act, 40 P.S. § 910-1, et seq. (“TICA”).
cited Cited as authority (rule) Cardello v. CRC Industries, Inc.
W.D. Pa. · 2006 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.1969).
discussed Cited as authority (rule) Azubuko v. Eastern Bank
3rd Cir. · 2005 · confidence medium
This Court has held that “because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, ... a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion.” See Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969).
discussed Cited as authority (rule) United States v. Herbert L. Bendolph, at No. 01-2468 United States of America v. Julio Otero, at No. 02-2624 (2×)
3rd Cir. · 2005 · signal: cf. · confidence medium
See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir.2000) ("Generally, courts should not raise sua sponte nonjurisdictional defenses not raised by the parties."); cf. Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.1969) (holding that a court may not raise the defense of lack of personal jurisdiction—a non-jurisdictional defense because it does not concern the power of the court to entertain the suit—once the defendant has waived the issue by appearing).
discussed Cited as authority (rule) United States v. Otero
3rd Cir. · 2005 · signal: cf. · confidence medium
See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir. 2000) (“Generally, courts should not raise sua sponte nonjurisdictional defenses not raised by the parties.”); cf. Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969) (holding that a court may not raise the defense of lack of personal jurisdiction—a non-jurisdictional defense because it does not concern the power of the court to entertain the suit—once the defendant has waived the issue by appearing).
discussed Cited as authority (rule) United States v. Bendolph
3rd Cir. · 2005 · signal: cf. · confidence medium
See Acosta v. Artuz, 221 F.3d 117, 122 (2d Cir. 2000) (“Generally, courts should not raise sua sponte nonjurisdictional defenses not raised by the parties.”); cf. Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969) (holding that a court may not raise the defense of lack of personal jurisdiction—a non-jurisdictional defense because it does not concern the power of the court to entertain the suit—once the defendant has waived the issue by appearing).
discussed Cited as authority (rule) Moneygram Payment Systems, Inc. v. Consorcio Oriental
3rd Cir. · 2003 · confidence medium
MoneyGram cites Zelson v. Thomforde, 412 F.2d 56, 58-59 (3d Cir.1969), to support its contention that the district court erred in raising the forum selection clause sua sponte and impermissibly granting defendants’ 12(b) motion to dismiss in reliance on that clause.
discussed Cited as authority (rule) Rearden Family Trust v. Wisenbaker
Haw. · 2003 · confidence medium
See also Roxas v. Marcos, 89 Hawai'i 91, 135 , 969 P.2d 1209, 1253 (1998) (stating that, “notwithstanding that the defense of lack of personal jurisdiction was asserted in the [defendants’] answer to the [plaintiffs’] complaint, ... the [defendants’] failure to assert it in their [pri- or] motion to dismiss constitutes a waiver of the issue pursuant to HRCP Rule 12(g) and (h)”); Wright & Miller, supra, § 1351, at 252-53 (stating that “ ‘personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object’ ” (quoting Zelson v. Thomforde, 412 F.2…
discussed Cited as authority (rule) O'Connell v. Three Park Avenue Building Co. (In Re Blutrich Herman & Miller)
Bankr. S.D.N.Y. · 1998 · confidence medium
See Pusey v. Dallas Corporation, 938 F.2d 498, 501 (4th Cir.1991); Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1, 3 (1st Cir.1988) (citing Williams, 802 F.2d at 1203 (per curiam) (“the court may not sua sponte consider defects in personal jurisdiction on behalf of parties who may choose to waive the defects or subject themselves to the court’s jurisdiction in any event.”)); Anger v. Revco Drug Co., 791 F.2d 956, 958 (D.C.Cir.1986) (per curiam); Zelson v. Thomforde, 412 F.2d 56, 59 (3rd Cir.1969).
cited Cited as authority (rule) City of East Orange v. 280 South Harrison Street Associates
N.J. Tax Ct. · 1997 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.), appeal after remand, 428 F.2d 1360 (3d Cir.1970); Paper v. Princeton Univ.
discussed Cited as authority (rule) Pilgrim Badge & Label Corp. v. Alfred A. Barrios
1st Cir. · 1988 · confidence medium
Corp., 576 F.2d 697, 701 (6th Cir.1978) (where defendants had moved to dismiss on the ground that the action was barred by the statute of limitations, but had failed to object to personal jurisdiction, the defense of lack of personal jurisdiction had been waived, and the defendants had submitted to the personal jurisdiction of the court; the district court, therefore, lacked authority to dismiss sua sponte for lack of personal jurisdiction); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969) (per curiam) (where defendants moved to dismiss solely on statute of limitations grounds, it was error …
discussed Cited as authority (rule) Charles Kapar v. Kuwait Airways Corporation
D.C. Cir. · 1988 · confidence medium
This was error. “[Bjecause personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appear-ance_” Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir.1969) (per curiam) (citations omitted); see also Williams v. Life Sav. & Loan, 802 F.2d 1200, 1202 (10th Cir.1986) (per curiam).
discussed Cited as authority (rule) Pamela Williams v. Life Savings and Loan
10th Cir. · 1986 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58 (3rd Cir.1969) (holding it was error for the district court to dismiss a case sua sponte for want of personal jurisdiction, where the defendant appeared without objecting to the court’s jurisdiction over him).
cited Cited as authority (rule) First Nat. Bank of Louisville v. Bezema
S.D. Ind. · 1983 · signal: cf. · confidence medium
Cf. Zelson v. Thomforde, 412 F.2d 56, 58 (3rd Cir.1969).
discussed Cited as authority (rule) Harris Corporation v. National Iranian Radio and Television and Bank Melli Iran, Defendants
11th Cir. · 1982 · confidence medium
Where a defendant does not raise the defense of lack of personal jurisdiction at the appropriate time in the district court, the objection is waived and the defendant is considered to have conferred jurisdiction by consent. 18 See Rauch v. Day & Night Manufacturing Corp., 576 F.2d 697, 701 (6th Cir. 1978); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969).
cited Cited as authority (rule) United States Nuclear Regulatory Commission v. Radiation Technology, Inc.
D.N.J. · 1981 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir. 1969); Fed.R.Civ.P. 12(h)(3).
discussed Cited as authority (rule) Carl Thomas Rauch, III v. Day and Night Manufacturing Corporation
6th Cir. · 1978 · confidence medium
E. g., Amen v. City of Dearborn, 532 F.2d 554 , 558 n. 7 (6th Cir. 1976); Alger v. Hayes, 452 F.2d 841, 844 (8th Cir. 1972); Konigsberg v. Shute, 435 F.2d 551 (3rd Cir. 1970); Zelson v. Thomforde, 412 F.2d 56, 58 (3rd Cir. 1969); Bethlehem Steel Corp. v. Devers, 389 F.2d 44, 46 (4th Cir. 1968); Crest Auto Supplies, Inc. v. Ero Manufacturing Co., 360 F.2d 896, 898 (7th Cir. 1966); Drabik v. Murphy, 246 F.2d 408 (2d Cir. 1957); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3rd Cir.), cert. denied, 322 U.S. 740 , 64 S.Ct. 1057 , 88 L.Ed. 1573 (1944).
discussed Cited as authority (rule) In Re the Marriage of Bradford (2×)
Mo. Ct. App. · 1977 · confidence medium
Zelson v. Thomforde, 412 F.2d 56, 58-59, n. 8 (3d Cir. 1969).
cited Cited "see" ATB Marine, LLC v. AES Puerto Rico, L.P.
D. Del. · 2025 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969).
discussed Cited "see" Tani v. FPL/Next Era Energy
D. Del. · 2011 · signal: see · confidence high
See Kloth v. Southern Christian Univ., 494 F.Supp.2d 273 , 275 n. 3 (D.Del.2007) (citing Zelson v. Thomforde, 412 F.2d 56 (3d Cir.1969)) (stating if service of process is insufficient to confer personal jurisdiction, a defendant does not waive this defense by failing to raise it in a motion or pleading within the time required for answer, since court has no power over such defendant.).
cited Cited "see" Kloth v. Southern Christian University
D. Del. · 2007 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56 (3d Cir.1969). 4 .On July 18, 2003, plaintiff found that SCU did not intend to pursue COAMFTE certification.
cited Cited "see" Kelvin Manbodh Asbestos Litigation Series v. Hess Oil Virgin Islands Corp.
visuper · 2005 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56, 58-59 (3d Cir. 1969); Tuky Air Transp. v. Edinburgh Ins.
discussed Cited "see" Popper v. Podhragy
S.D.N.Y. · 1998 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56, 58 (3d Cir.1969) (error for district court to dismiss case sua sponte for want of personal jurisdiction, where defendant appeared without objecting to court’s jurisdiction).
cited Cited "see" Associated Electric & Gas Insurance Services, Ltd. v. Texas Eastern Transmission Corp.
3rd Cir. · 1994 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56, 58-59 (3d Cir.1969); United States v. Article of Drug, etc., 362 F.2d 923, 926-27 (3d Cir.1966).
cited Cited "see" In Re Texas Eastern Transmission Corp. Pcb Contamination Insurance Coverage Litigation (Mdl No. 764). Associated Electric & Gas Insurance Services, Ltd. National Surety Corporation v. Texas Eastern Transmission Corporation Fidelity & Casualty Insurance Company of New York Certain Underwriters at Lloyds of London, Including the Insurance Company of Ireland Aetna Casualty and Surety Company American Home Assurance Company Boston Old Colony Insurance Company Continental Casualty Insurance Company First State Insurance Company Highlands Insurance Company the Home Insurance Company Insurance Company of North America Insurance Company of the State of Pennsylvania International Insurance Company Lexington Insurance Company Midland Insurance Company Mutual Marine Insurance Company Prudential Reinsurance Company Ranger Insurance Company Republic Insurance Company Stonewall Insurance Company Pennsylvania Insurance Guaranty Association United States of America United States Environmental Protection Agency (d.c. Civil No. 88-02126). The Fidelity & Casualty Co. Of New York v. The Texas Eastern Transmission Corp. (d.c. Civil No. 88-05039). Texas Eastern Transmission Corporation v. Fidelity and Casualty Company of New York Associated Electric & Gas Insurance Services, Ltd. Aetna Casualty and Surety Company American Home Assurance Company, A/K/A American Home Insurance Company Boston Old Colony Insurance Company Cigna Insurance Company Continental Casualty Company Employers Mutual Casualty Company First State Insurance Company Highlands Insurance Company the Home Insurance Company the Insurance Company of North America Insurance Company of the State of Pennsylvania International Insurance Company Lexington Insurance Company Midland Insurance Company National Surety Corporation Prudential Reinsurance Company Ranger Insurance Company Republic Insurance Company Stonewall Insurance Company United States Fire Insurance Company Certain Underwriters at Lloyd's, London and Certain London Market Insurance Companies (d.c. Civil No. 88-05707), Texas Eastern Transmission Corporation
1st Cir. · 1994 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56, 58-59 (3d Cir.1969); United States v. Article of Drug, etc., 362 F.2d 923 , 926-27 (3d Cir.1966).
cited Cited "see" Lee Y. Sanderford, Ella v. Yarborough v. Prudential Insurance Company of America, Defendant/third-Party v. Daniel Kikly, Third-Party
3rd Cir. · 1990 · signal: see · confidence high
See Zelson v. Thomforde, 412 F.2d 56 (3d Cir.1969); Frank Keevan & Son v. Callier Steel Pipe & Tube, Inc., 107 F.R.D. 665 (S.D.Fla.1985).
cited Cited "see" United States ex rel. Combustion Systems Sales, Inc. v. Eastern Metal Products & Fabricators, Inc.
M.D.N.C. · 1986 · signal: see · confidence high
Bavouset v. Shaw’s of San Francisco, 43 F.R.D. 296 (S.D.Tex.1967); see Zelson v. Thomforde, 412 F.2d 56 , 58 n. 8 (3d Cir.1969)—(noting trend); cf. 5 C.
Retrieving the full opinion text from the archive…
Joseph Zelson and Geraldine Zelson, His Wife
v.
Harold E. Thomforde, Individually and Trading as Thomforde Orchard and Thomforde Catering Service, and Wickes Lumber Co., a Corporation of the State of Michigan, Jointly, Severally and in the Alternative
17589_1.
Court of Appeals for the Third Circuit.
Jun 13, 1969.
412 F.2d 56
1969 U.S. App. LEXIS 11943
Cited by 22 opinions  |  Published

412 F.2d 56

Joseph ZELSON and Geraldine Zelson, his wife, Appellants,
v.
Harold E. THOMFORDE, individually and trading as Thomforde
Orchard and Thomforde Catering Service, and Wickes Lumber
Co., a Corporation of the State of Michigan, jointly,
severally and in the alternative.

No. 17589.

United States Court of Appeals Third Circuit.

Argued March 27, 1969.
Decided June 13, 1969.

Gerald Z. Berkowitz, Wahl, Greenstein & Berkowitz, Wilmington, Del., for appellants.

William S. Zink, Bleakly, Stockwell, Zink & McGeary, Camden, N.J., for appellee Thomforde.

Sidney P. McCord, Jr., McCord, Farrell, Eynon & Munyon, Haddonfield, N.J., for appellee Wickes Lumber Co.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

[*~56]1

On April 26, 1968, a complaint was filed in the United States District Court for the District of New Jersey charging the defendant-appellee Thomforde with the negligent operation of a motor vehicle resulting in damages to the plaintiffs-appellants as a consequence of an accident which occurred on March 9, 1966.[1] The jurisdiction of the court was based on diversity of citizenship.[2]

2

The accident occurred on the Delaware-Memorial Bridge which spans the boundary between Delaware and New Jersey. Ordinarily a complaint filed either in Delaware[3] or New Jersey[4] upon such a cause of action would be barred by a two-year statute of limitations. Believing New Jersey law to be applicable, appellants claimed relief from the New Jersey statute of limitations under N.J.S.A. 2A:14-22,[5] which tolls the statute when the cause of action is against nonresidents of the state for as long a period as the defendant is not available in New Jersey for service of process. Defendant-appellee Thomforde, joined by Wickes Lumber Co., filed a motion to dismiss, on the sole ground that the New Jersey relief statute does not accrue to the benefit of nonresidents and is therefore unavailable to appellants. The court below did not directly reach this question.

3

The district court determined that because the accident occurred on the Delaware-Memorial Bridge, to which Delaware presumably has title by virtue of compacts between the states of New Jersey and Delaware and other legislation, the situs of the accident was in Delaware.[6] On the basis of this determination, the court ruled, on its own motion, that the service of process which had been made on appellees was improper and no personal jurisdiction had been obtained over them. The court therefore dismissed the complaint, stating:

[*~57]4

It is undisputed that the accident in question occurred on the Delaware-Memorial Bridge, on the up-ramp section of the span. And, since the bridge is entirely within the State of Delaware both as to title and by reason of these compacts, the purported service of process under the New Jersey 'longarm' statute is invalid. See R.S. 39:7-2, N.J.S.A. which pertains to operation of motor vehicles by non-residents within the State of New Jersey, with provision for service of process upon the Director of Motor Vehicles. * * * * * * It seems that the accident having occurred within the jurisdiction of the State of Delaware and none of the litigants being resident in New Jersey, attempted service of process under the New Jersey 'Long-Arm' Statute (N.J.S.A. 39:7-2) by one non-resident against another was improper. Appellants' Appendix 5a, 6a.

5

We reverse the dismissal of the complaint.

6

Jurisdictional objections which may be raised at any time by the parties, or by the court sua sponte, relate to subject matter jurisdiction.[7] Louisville & N.R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Mansfield, Coldwater & Lake Michigan R'way Co. v. Swan,111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); John Birch Society v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967); Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24, 27 (8th Cir. 1964); McGonigle v. Baxter, 27 F.R.D. 504 (E.D.Pa.1961); 1A Barron and Holtzoff, Federal Practice and Procedure 370, p. 509 (Wright ed. 1960).

[*~59]7

Jurisdictional objections to the court's power over the person are waived unless timely asserted by motion or answer.[8] In re Natta, 388 F.2d 215, 220 (3d Cir. 1968); Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543, 546 (3d Cir. 1967); United States v. Article of Drug, 362 F.2d 923, 926-927 (3d Cir. 1966); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3rd Cir.), cert. denied sub nom., Orange Theatre Corp. v. Brandt, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944); Tiernan v. Dunn, 295 F.Supp. 1253 (D.R.I.1969);[9] O'Connor v. Western Freight Ass'n., 202 F.Supp. 561, 564 (S.D.N.Y.1962).[10] Thus, because personal jurisdiction may be conferred by consent of the parties, expressly or by failure to object, Petrowski v. Hawkeye Security Ins. Co.,350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956), 1A Barron and Holtzoff, supra at 370, a court may not sua sponte dismiss for want of personal jurisdiction, at least where a defendant has entered an appearance by filing a motion, as here, or otherwise. Cf. Concession Consultants, Inc. v. Mirisch,355 F.2d 369, 371 (2d Cir. 1966), where it was held to be error for the district court to dismiss a suit for improper venue, on its own motion, where defendants had challenged service of process but no objection to venue had been made. Also, in Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 732, 9 L.Ed.2d 718 (1963), the court struck down the dismissal of an action on the basis of the statute of limitations where that defense had not been raised. The court said:

[*~59]8

The raising of the defense of the statute of limitations, * * * is a personal privilege of the defendant. If it fails to take advantage of that privilege in the manner provided by law, it is waived. It was no concern of the district court and that court had no right to apply the statute of limitations sua sponte. 307 F.2d at 412.

9

Since the possible invalidity of the service of process under New Jersey's long arm statute is a matter of personal jurisdiction, the court below was in error in dismissing the action without the issue having been raised below by defendant-appellees, and, therefore, any objections to service of process are deemed to have been waived.

10

The order of the court below will be reversed and the case remanded for further proceedings consistent with this opinion.

1

The other defendant-appellee, Wickes Lumber Co., was charged with the negligent loading of the Thomforde vehicle which allegedly contributed to the cause of the accident

2

Plaintiffs are from Delaware, defendant Thomforde is from Pennsylvania, and defendant Wickes is a Michigan corporation

3

10 Del.C. 8118 (1968)

4

N.J.S.A. 2A:14-2 (1952)

5

If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this state when such cause of action accrues, or removes from this state after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this state, against whom there is such a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this state or such corporation or corporate surety is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation

6

There is nothing in the record, by way of pleadings or affidavits, regarding the exact situs of the accident. Appellants challenge the validity of the lower court's conclusion on this point. As we reverse on other grounds, we need not decide at this time what consequences would flow from the fact, if adduced at trial or otherwise, that the accident occurred on the bridge, which Delaware owns, over territory of New Jersey

7

Rule 12(h)(3) of the Federal Rules of Civil Procedure is as follows:

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

8

Rule 12(h)(1) of the Federal Rules of Civil Procedure provides:

A defense of lack of jurisdiction over the person * * * is waived (A) if omitted from a motion * * * or (B) if it is neither made by motion under this rule nor included in a responsive pleading * * *.

In the Advisory Committee's Note to the 1966 amendment of the Rules, it is stated:

Amended subdivision (h)(1)(A) * * * states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process * * *. 39 F.R.D. 69, 78 (1966). (See Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543, 546 n. 5 (3d Cir. 1967); Wright, Proposed Changes in Federal Civil, Criminal, and Appellate Procedure, 35 F.R.D. 317, 334 (1964).)

It should be emphasized that this is not a case where a defendant takes no action whatsoever to submit himself to the jurisdiction of the court. In 1A Barron and Holtzoff, Federal Practice and Procedure 370, p. 513 (Wright ed. 1960), it is stated:

* * * If, however, service of process is insufficient to confer jurisdiction of the person, the defendant does not waive this defense by failing to raise it by motion or pleading within the time for answer, since the court has no power over the defendant (cf. Wyrough & Loser, Inc. v. Pelmor Laboratories, Inc., 376 F.2d 543, 546 n. 4 (3d Cir. 1967); Di Vecchio v. Gimbel Bros., 40 F.R.D. 311, 314 (W.D.Pa.1966); In re Eizen Furs, Inc., 10 F.R.D. 137, 139 (E.D.Pa.1950)) unless he submits to its jurisdiction by moving or pleading. * * * Moore's Federal Practice P12.23, p. 2327 (2d ed. 1968).)

In the instant appeal, of course, the defendants-appellants did move to dismiss, on the statute of limitations ground, without raising the issue of proper service of process. Cf. Crest Auto Supplies, Inc. v. Ero Manufacturing Co., 360 F.2d 896, 898 (7th Cir. 1966).

It should be noted that the interpretation in the first portion of the above quotation has recently been questioned on the basis of the present language of FRCP 12(h), so that even a failure to respond at all, either by way of motion or answer, may perhaps be considered a waiver of any objection to service of process. See 1A Barron and Holtzoff, Federal Practice and Procedure 370 (Wright and Elliott ed. 1968).

9

Appellees in their brief before this court indicated that they may have been unaware of any possible service of process defect and therefore concentrated on the defense of the statute of limitations. A comparable argument was rejected in Tiernan where the court said:

* * * The defendant has argued in its memorandum that no waiver should be effectuated here because the certainty that the motion to dismiss for failure to state a claim would be granted was so great, as of the time of the making of that motion, that the defendant felt no need to raise any other defense. * * * Whatever may have been the defendant's reason for not raising her additional defenses on her initial motion, the fact remains that she did not do so * * *. 295 F.Supp. at 1255-1256.

10

Cf. waiver of defense of statute of limitations by failure to raise it in timely fashion. Van Sant v. American Express Co., 169 F.2d 355, 372 (3d Cir. 1947)