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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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Defendants and is awaiting oral argument. 44 See Picard v. UBS AG (In re Bernard L. Madoff Inv.
Sec.), No. 11-5051 (2d Cir.) [2d Cir. ECF No. 98, 99, 100.]
After having first moved to withdraw the reference to the District Court in June and July
2011, having moved dispositively before the District Court in August 2011, and/or having
opposed the Trustee’s appeal in the Second Circuit in April 2012, the Moving Defendants now
invoke Rule 12(b)(2) to contest this Court’s ability to adjudicate this dispute based on lack of
personal jurisdiction. It is improper for the Moving Defendants to avail themselves of
affirmative relief before the District Court and the Second Circuit, and then subsequently argue
that this Court does not have the power to bind them in this proceeding. See Andros Compania
Maritima, S.A. v. Intertanker Ltd., 718 F.Supp. 1215, 1217 (S.D.N.Y. 1989) (“It is a fundamental
tenet of jurisdictional law that a party may waive a challenge to the Court’s in personam
jurisdiction, . . . and appearing and seeking affirmative relief from the Court is the paradigm of
such a waiver.”).
Rule 12(h)(1) of the Federal Rules of Civil Procedure provides that a party waives the
defense of lack of personal jurisdiction when it fails to raise that defense in either its first Rule 12
motion or in its responsive pleading. Fed. R. Civ. P. 12(h)(1)(B). “The message conveyed by . .
. Rule 12(h)(1) seems quite clear. It advises a litigant to exercise great diligence in challenging
personal jurisdiction . . . If that party wishes to raise [the defense of lack of personal
jurisdiction], that must be done at the time the first significant defensive move[] is made—
44 Luxalpha did not file a motion to dismiss the common law claims. However, on August 17, 2011, the Trustee
filed an Amended Complaint, which included a common law contribution claim against all defendants, including
Luxalpha. [S.D.N.Y. ECF No. 23.] On September 7, 2011, the District Court entered an order deeming the motions
to dismiss the common law claims filed by other defendants to be directed to the Amended Complaint. [S.D.N.Y.
ECF No. 28.] On November 1, 2011, the District Court entered the order granting the motions to dismiss the
common law claims as to all Defendants. [S.D.N.Y. ECF No. 36 at 33.] Luxalpha then participated in the Second
Circuit proceedings by filing an Acknowledgement and Notice of Appearance and a brief opposing the Trustee’s
appeal. [2d Cir. ECF No. 37, 99.].
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