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14. Is the court likely to grant the pharmacist's motion to dismiss?
A patient from State A sued a pharmacist from State B in a federal district court in State A, seeking $100,000 compensation for tortious injuries caused by the pharmacist's allegedly negligent acts in State B. The pharmacist had never been to State A and never had any contact with State A. Prior to filing an answer to the patient's complaint, the pharmacist's lawyer filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the court denied. Then, after answering the patient's complaint, the pharmacist's lawyer filed a second motion to dismiss for lack of personal jurisdiction.
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A is incorrect. A federal court must have both subject-matter and personal jurisdiction to hear a lawsuit. Satisfying the criteria of diversity of citizenship and the amount in controversy simply means that the federal court has subject-matter jurisdiction. These criteria have no bearing on personal jurisdiction or on whether challenges to personal jurisdiction have been waived, which is a separate issue.
C is incorrect. This is an incorrect statement of the law. Personal jurisdiction may, in fact, be waived; a party may also consent to the court's personal jurisdiction. It is subject-matter jurisdiction that may not be waived.
D is incorrect. Although it is arguable that the federal court in State A did not have personal jurisdiction over the pharmacist, the pharmacist consented to the personal jurisdiction by filing the initial motion to dismiss for failure to state a claim upon which relief could be granted in State A without also including the defense of lack of personal jurisdiction. Again, the defense of personal jurisdiction is waived because of the failure to assert it in the first motion to dismiss.