The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Defendant Azteca Productos, Inc., moves to dismiss under Rule 12(b)(2) for lack of personal jurisdiction in the forum state of Illinois.I find that, based on the sum total of their conduct in the litigation, they have waived that defense and have submitted to jurisdiction here.
Plaintiff Salud Natural Entrepeneur, Inc. ("Salud") sells herbal and dietary supplements. On July 22, 2009, they brought against multiple competitors, including Azteca Productos, Inc., ("API") for trade dress infringement.
On October 26, 2009, API filed an answer, with counterclaims, making no mention of a lack of personal jurisdiction. That filing was made, however, not by a lawyer but by an officer of API, a Mr. Carlos Vasquez. Mr. Vasquez billed himself as "Defendant Pro Se," though he is not a named defendant and the content of the answer and counterclaims indicates that he was plainly attempting to speak for API. Salud filed its answer to API's attempted counterclaims on November 10, 2009.
On November 17, 2009, Salud, API, and other defendants met and conferred in accordance with Rule 26(f). This time, API was represented by counsel, a Mr. Anatole Selivra from the law office of Anatole Selivra in Ledera Ranch, California. The parties - including API as represented by counsel - jointly submitted their report of the conference on December 8, 2009. No mention is made in that submission of API's objection to personal jurisdiction in Illinois, and Salud claims that Mr. Selivra said he would file his appearance in the matter soon after the conference. He has never done so and apparently has taken no further actions on API's behalf.
After the December discovery conference, the non-API defendants and Salud entered into settlement discussions. Magistrate Judge Schenkier held a settlement conference and the parties reached an agreement on January 14, 2010.*fn1 Left as the sole defendant in the case, API's next move came on February 23, 2010 with a motion to dismiss for lack of personal jurisdiction or in the alternative to transfer the action to the Central District of California. But it was not the attorney, Mr. Selivra, who filed the motion. Rather, it was again API's principal, Mr. Vasquez, filing pro se on behalf of the corporation.
Citing the well-settled rules that non-lawyers cannot represent a corporation pro se and that pro se parties cannot represent others, Salud sought to have the filings submitted by Mr. Vasquez struck. See Nocula v. UGS Corp., 520 F.3d 719, 725 (7th Cir. 2008); see also Scandia Down Corp. V. Euroquilt, Inc., 1423, 1427; 28 U.S.C. § 1654. Salud further moved for entry of judgment against API on the rationale that since no filings had been properly entered, API was effectively in default. I granted the motions to strike and the default judgment on March 17, 2010. I later granted an injunction against API barring it from certain conduct related to the subject matter of the case. That injunction order was signed on May 20, 2010.
On May 24, 2010, a new attorney, Douglas Cannon, entered a special and limited appearance on behalf of API seeking to have the default vacated. A round of briefing ensued, culminating in my order of September 2, 2010, granting the vacatur of default but finding API to have been in contempt of court for violations of the injunction from May 20th through September 2nd, the date of the vacatur.
As part of the default motion, API argued that while it conceded that Mr. Vasquez's February 23rd 12(b)(2) motion was improperly filed by a non-attorney, the motion raised legitimate issues with respect to personal jurisdiction that should in the interests of justice be considered by the court. API neglected to explain, though, why Mr. Vasquez answered and counterclaimed back in October and why counsel for API met, conferred, and submitted a plan concerning discovery in the case - all before raising the personal jurisdiction defense.
I nevertheless invited a full round of briefing on the issue of personal jurisdiction in a September 2nd minute order. API therefore filed the 12(b)(2) motion considered here on October 12, 2010. A full round of briefing, including a sur-reply, concluded on November 23, 2010 with objections by API because Salud filed an allegedly overlong brief.*fn2 Salud asserts that API waived its personal jurisdiction defense through its conduct, or in the alternative that this court does have such jurisdiction.
Rule 12(b)(2) provides for the defense of "lack of personal jurisdiction" by motion. Fed. R. Civ. P. 12(b)(2). Such a motion "must be made before pleading if a responsive pleading is allowed." Id. Alternatively, the defense can be offered in the responsive pleading itself. See Fed. R. Civ. P. 12(h)(1).
Lack of personal jurisdiction is one of a block of defenses treated similarly under the Rules. See Fed. R. Civ. P. 12(b)(2)-(5). These defenses are "strictly for the convenience of the defendant" and so can be "waived or forfeited." See American Patriot Ins. Agency, Inc. v. Mut. Risk Mgmt., 364 F.3d 884 (7th Cir. 2004). Waiver or forfeiture can happen if the defense is not timely raised, by formal submission of the movant in the case, or by submission through conduct. See Blockowicz v. Williams, 2010 U.S. App. LEXIS 26229 (Dec. 27, 2010). The Seventh Circuit has described ...