United States District Court, N.D. Illinois, Eastern Division
THOMAS QUINN and THERESA QUINN, individually and on behalf of a class of similarly situated persons, Plaintiffs,
SPECIALIZED LOAN SERVICING, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge.
bring this class action, alleging that defendant, a home loan
servicer, violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
On March 8, 2019, I certified Class A, which consists of
Illinois, Indiana, and Wisconsin consumers who were
represented by an attorney but nonetheless received home
visits from defendant's field agents, and Class B, which
consists of Illinois, Indiana, and Wisconsin consumers who
received allegedly misleading door hangers from
defendant's agents. The Seventh Circuit denied defendant
permission to appeal that order. Defendant now seeks to
sunder these certified classes and moves to dismiss, or in
the alternative strike or reconsider certification of, the
class claims of non-Illinois residents. It argues, under the
Supreme Court's decision in Bristol-Myers Squibb Co.
v. Superior Court, 137 S.Ct. 1773, 1781 (2017),
constitutional due process precludes me from exercising
specific jurisdiction over it with respect to the claims of
class members who are not resident in Illinois because those
claims arise from defendant's conduct outside of
Illinois, and defendant is not subject to general
jurisdiction in this matter. Plaintiffs respond that
defendant has waived its objections to personal jurisdiction
and that Bristol-Myers requires no such conclusion.
For the reasons that follow, I deny the motion.
first argue that defendant has waived its objection to
personal jurisdiction because it failed to make that
challenge in its prior motion to dismiss pursuant to Rule
12(b)(6). Rule 12(h) and Rule 12(g) provide that a party
waives an available defense based on lack of personal
jurisdiction, “by omitting it from its first motion or
by failing to either make it in a motion under Rule
12 or include it in the responsive pleading or in an
amendment allowed by Rule 15(a)(1) as a matter of
course.” Hedeen Int'l, LLC v. Zing Toys,
Inc., 811 F.3d 904, 906 (7th Cir. 2016) (emphasis in
original); Fed.R.Civ.P. 12(h)(1). “The policy behind
Rule 12(g) is to prevent piecemeal litigation in which a
defendant moves to dismiss on one ground, loses, then files a
second motion on another ground.” Ennenga v.
Starns, 677 F.3d 766, 773 (7th Cir. 2012). Defendant
admits that it did not object to personal jurisdiction in its
initial Rule 12 motion but argues that it preserved its
personal jurisdiction defense in its answer and that defense
was not available when it filed its initial Rule 12 motion.
first argument can be disposed of quickly. The failure to
raise an available objection to personal jurisdiction in a
pre-answer Rule 12 motion waives that objection and cannot be
cured by later asserting that defense in an answer.
Fed.R.Civ.P. 12(h)(1); Fed.R.Civ.P. 12, Advisory
Committee's Note of 1966 to amended Rule 12(h))); 5C
Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1391 (3d ed. 2004);
e.g., Erie Indem. Co. v. Keurig, Inc., No.
1:10-CV-02899, 2011 WL 5361096, at *2 (N.D. Ohio Oct. 31,
2011). Defendant first raised its personal jurisdiction
defense in its answer, after I ruled on its motion to dismiss
pursuant to Rule 12(b)(6). Consequently, defendant waived
second argument, that this defense was not available when it
moved to dismiss because Bristol-Myers had not yet
been decided, merits a closer analysis. Courts have
articulated what is necessary for a defense to be not
“available” in different ways. Generally, the
omission of a defense from a prior motion does not result in
the waiver of such defense when “a prior authoritative
decision indicated that the defense was unavailable”
and “the defense became available thereafter by way of
supervening authority . . . .” Bennett v. City of
Holyoke, 362 F.3d 1, 7 (1st Cir. 2004); see also In
re Micron Tech., Inc., 875 F.3d 1091, 1097 (Fed. Cir.
2017) (“When a defense or objection is futile in the
sense that the law bars the district court from adopting it
to dismiss, ” it is not available for purposes of Rule
12 waiver); Am. Fid. Assur. Co. v. Bank of New York
Mellon, 810 F.3d 1234, 1237 (10th Cir. 2016) (“By
‘available' we mean the standard it relies upon
would have been the same if it had relied on it
earlier.”). The issue then becomes: did
Bristol-Meyers make available to defendant a defense
that was previously barred or futile?
Bristol-Meyers, a group of mostly out-of-state
plaintiffs, consumers of the drug Plavix, brought a mass tort
product liability action in California state court against
Plavix manufacturer Bristol-Meyers Squibb. 137 S.Ct. at 1778.
Bristol-Meyers Squibb was not subject to general jurisdiction
in California. Id. In considering whether the
California court could exercise specific jurisdiction over
Bristol-Meyers Squibb for the non-California plaintiffs'
claims, the Supreme Court held that “[t]he mere fact
that other plaintiffs were prescribed, obtained, and
ingested Plavix in California-and allegedly sustained the
same injuries as did the nonresidents- does not allow the
State to assert specific jurisdiction over the
nonresidents' claims.” Id. at 1781
(emphasis in original). The Court reasoned that a
“straightforward application” of “settled
principles of personal jurisdiction” mandated this
conclusion, namely that the exercise of specific jurisdiction
over a defendant requires “an affiliation between the
forum and the underlying controversy, principally, an
activity or an occurrence that takes place in the forum
State.” Id. at 1778, 1783 (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (2011)).
are divided on whether defendant's personal jurisdiction
defense was available before Bristol-Myers was
decided. Compare Am.'s Health & Res. Ctr., Ltd.
v. Promologics, Inc., 16 C 9281, 2018 WL 3474444, at *3
(N.D. Ill. July 19, 2018) (Leinenweber, J.)
(Bristol-Myers was not an intervening change in
controlling law that made available a new type of personal
jurisdiction defense but rather, in the Supreme Court's
words, represented a “straightforward application of
settled principles[.]”) and Mussat v. Enclarity,
Inc., 362 F.Supp.3d 468, 474 (N.D. Ill. 2019) (Tharp,
J.) (same) with Mussat v. IQVIA Inc., 17 C 8841,
2018 WL 5311903, at *2 (N.D. Ill. Oct. 26, 2018) (Kendall,
J.), appeal approved, No. 18-8024, ECF No. 10 (7th
Cir. January 25, 2019) (class action defendant could not be
expected to know personal jurisdiction defense was available
until another district court applied Bristol-Myers
to a class action bringing the same statutory claim). I agree
with the courts that have determined Bristol-Myers
did not unshackle a previously-unavailable defense for class
action defendants. The central thesis of defendant's
argument is that personal jurisdiction cannot exist over
nonresident class members where there is no connection or
“affiliation between the forum and the underlying
controversy.” Dkt. No. 216, Br. at 1, 8, 9, 11. Two
recent Supreme Court decisions predating this lawsuit
pronounced this same standard: Walden v. Fiore, 571
U.S. 277, 284 (2014) (“For a State to exercise
jurisdiction consistent with due process, the defendant's
suit-related conduct must create a substantial connection
with the forum State.”); Goodyear, 564 U.S. at
919 (“Specific jurisdiction . . . depends on an
affiliation between the forum and the underlying controversy,
principally, activity or an occurrence that takes place in
the forum State . . . .”) (internal quotations and
citations omitted). Defendant's personal jurisdiction
argument may not have been articulated before
Bristol-Myers, but its defense was available.
See Enclarity, 362 F.Supp.3d at 474 (“To be
sure, Bristol-Myers has prompted defendants to
assert specific personal jurisdiction defenses in new
contexts. But that the defense is novel or creative does not
necessarily mean that it was previously unavailable.”)
defendant has not provided, nor am I aware of, any
controlling precedent that predates Bristol-Myers
and would bar defendant's personal jurisdiction defense.
See Promologics, 2018 WL 3474444, at *3 (noting the
court was unaware of “pre-Bristol-Myers,
Seventh-Circuit authority that would have rendered futile a
challenge to personal jurisdiction as to the non-resident,
proposed class members.”); Enclarity, 362
F.Supp.3d at 474 (same).
alternatively argues, should I decline to dismiss
non-Illinois class members, that I should strike the claims
of those members pursuant to Fed.R.Civ.P. 12(f) because such
claims “fail as a matter of law” and doing so
would expedite the case. Dkt. No. 232, Reply Br. at 5-6.
Defendant's first argument fails for the same reasons as
its motion to dismiss. The only legal ground defendant
identifies is my alleged lack of personal jurisdiction over
it for nonresident class members' claims. Nor can
defendant use a motion to strike to circumvent Rule 12's
waiver provisions. See Express Companies, Inc. v.
Lifeguard Med. Sols., LLC, 10CV178-WQH-WMC, 2010 WL
11508847, at *4 (S.D. Cal. Sept. 1, 2010) (defendant waived
its right to move to strike improperly plead requests for
punitive damages and attorney's fees because it failed to
raise that objection in a prior motion to dismiss).
Defendant's second argument is likewise unconvincing. Any
efficiency gained in this case by severing Indiana and
Wisconsin consumers from Class A and Class B would likely be
a net loss to the federal judiciary as it could generate
nearly-identical actions in those forums.
defendant provides no convincing reason to reconsider my
class certification under Rule 54(b). Generally, under the
law of the case doctrine, I should not reopen decided issues
in a case unless “there is a compelling reason, such as
a change in, or clarification of, law that makes clear that
the earlier ruling was erroneous.” United States v.
Harris,531 F.3d 507, 513 (7th Cir. 2008); but see
Avitia v. Metro. Club of Chicago, Inc.,49 F.3d 1219,
1227 (7th Cir. 1995) (the law of the case doctrine is
“no more than a presumption, one whose strength varies
with the circumstances . . . .”). There has been no
intervening change in the law. Bristol-Myers stood
for a year and a half before I ruled on class certification.
Moreover, a motion to reconsider is not an opportunity to
present arguments that could have been raised ...