Defendant, A United Arab Emirates Bank, Lacked Sufficient Contacts With The US.
The court staff summary of this case states: "The panel reversed the district court's judgment compelling arbitration of claims concerning a contract and remanded for dismissal on the ground that the district court lacked personal jurisdiction over the defendant." InfoSpan, Inc., et al. v. Emirates NBD Bank PJSC, No. 16-55090 (9th Cir. 9/7/18) (N.R. Smith, Berzon, Castel).
There is waiver and there is waiver. We know that a party may waive the right to arbitrate by vigorously litigating. But the issue in this case was a different kind of waiver. The district court had suggested that, though the Bank fully litigated merits of its personal jurisdiction defense, "it nonetheless waived the issue by vigorously defending the case after the personal jurisdiction issue was decided against it."
The 9th Circuit panel disagreed: "A defendant that timely asserts that the district court lacks personal jurisdiction and litigates the issue to an adverse decision from the district court does not waive the personal jurisdiction defense by vigorously litigating defenses to the merits, including by asserting counterclaims against other parties."
Practice Tip: The panel distinguished cases in which "waiver arose from the defendant's conduct in failing to properly request a ruling on the issue of personal jurisdiction." In other words, it is not vigorous litigation of remaining claims that leads to waiver, it is failure to preserve the personal jurisdiction issue by requesting a ruling. So if one wants to preserve the personal jurisdiction issue, one should assert the defense, request a ruling, and get a ruling.
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