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Sometimes a decision comes along that seems so obvious, one wonders why it still remains one of first impression. On Jan. 15, 2020, the Third Circuit, in a case of first impression, held that a defendant who chooses to remove to federal court does not consent to personal jurisdiction by so doing, and retains its defenses it had in state court. While this might have seemed self-evident, the court in Danzinger & De Llano v. Morgan Verkamp did a service to the bar in bringing the Third Circuit in line with other circuits that have ruled on the issue, such as the First, Second and Eighth circuits.

Plaintiff was a law firm that referred potential qui tam clients to another law firm, and sought recovery of attorney's fees from a particular referral, based on an oral agreement among counsel, but not with the actual client. Following settlement of the qui tam action, defendant received "several million dollars in attorney's fees." Plaintiff sued in Pennsylvania state court, by using the local procedure of a writ of summons rather than filing the complaint. This means that discovery can occur prior to the complaint, which process took a year and a half. Finally, defendant moved to compel the filing of the complaint, which occurred. Two weeks later defendant removed before its response to the complaint was due. Upon removal, defendant then moved to dismiss or alternatively, for transfer to the Southern District of Ohio. Plaintiff opposed the motion and alternatively sought transfer to Texas. The trial court dismissed the complaint with prejudice on the grounds of no personal jurisdiction.

On the issue of whether the right to raise a personal jurisdiction defense had been waived by virtue of participation in pre-complaint discovery for that period of time, the court disagreed, based on interpretation of the state court rules. Regarding the removal issue, the court held that removal does not constitute consent to personal jurisdiction instead of raising the issue in the state court proceeding first. The court adopted "hornbook law" of Wright and Miller on Federal Practice and Procedure in so doing, noting that "removal does not cure jurisdictional defects, so defendants can still challenge jurisdiction after removal." Upon removal, the federal rules of civil procedure govern, so the timing and procedures of Rule 12 apply.

The issue had been addressed in New Jersey previously. In Marosovitz v. Trustees of Deed of Tr. Created by Nusbaum, No. CIV. 88-2653 (GEB), 1988 WL 83089, at *3 (D.N.J. Aug. 2, 1988), an unreported decision over 30 years ago, the court brusquely dismissed the argument of waiver of a personal jurisdiction defense based on consent by removing the case; the court said "this argument is without merit" with no analysis, and cited a federal case from the Western District of Michigan and Wright and Miller.

We are glad that this is now made clear.