This blog post considers yet another aspect of personal jurisdiction, or the authority of a court over the parties before it. One of the elements of personal jurisdiction is effective service of process—the service of the documents initiating a civil lawsuit. Objections to a court’s exercise of personal jurisdiction because of a defect in service of process are extremely common, as are other defenses challenging personal jurisdiction. A party can waive these defenses, however, by making what is termed a general appearance in the matter. A recent case in the North Carolina Court of Appeals, Blaylock v. AKG North America, affirmed the dismissal of a civil lawsuit because of a failure to achieve service of process. In doing so, it answered a question of first impression regarding general appearances and personal jurisdiction—specifically, whether notice of removal of a case to federal court qualifies as a general appearance.
A defect in service of process typically prevents the court’s exercise of personal jurisdiction over a defendant, so this is frequently a threshold issue in a civil lawsuit. However, valid service of process is not always necessary for a court to exercise personal jurisdiction over a defendant. N.C.G.S. § 1-75.7 specifies that a court can exercise personal jurisdiction over a defendant “without serving a summons” against her—as long as she “makes a general appearance in an action.” In fact, any defense based on a lack of personal jurisdiction can be waived if the party makes a “general appearance” before asserting the defense. See, e.g., Swenson v. Thibaut, 39 N.C. App. 77, 88 (1978). Once a party successfully asserts the defense of personal jurisdiction, they can proceed to defend themselves in the case without waiver. See, e.g., Draughon v. Harnett Cty. Bd. of Educ., 166 N.C. App. 449, 453, (2004) (holding that “asserting his jurisdictional defenses in his first filed pleading,” preserved the defendant’s “right to challenge the court’s jurisdiction” over him despite his subsequent action); N.C. R. Civ. P. 12(h)(1).
So, what exactly is a general appearance? The answer is almost anything. “In short, an appearance for any purpose other than to question the jurisdiction of the court is general.” Woods v. Billy’s Auto., 174 N.C. App. 808, 813 (2005) (cleaned up). If the defendant has “asked for or received some relief in the cause, participated in some step taken therein, or somehow bec[o]me an actor in the cause” before properly asserting her personal jurisdiction defense, then she has made a general appearance. Bullard v. Bader, 117 N.C. App. 299, 301 (1994). In other words, the party must in some way “invoke the adjudicatory powers of the court.” Zellars v. McNair, 166 N.C. App. 755, 757 (2004).
Just a few examples of conduct that qualify as a general appearance and waive personal jurisdiction defenses are:
- A physical appearance participating in a court hearing. Bumgardner v. Bumgardner, 113 N.C. App. 314, 319 (1994); Bethea v. McDonald, 70 N.C. App. 566, 569 (1984).
- A motion to change venue. Humphrey v. Sinnott, 84 N.C. App. 263, 265–66 (1987).
- A motion to disqualify opposing counsel. Swenson, 39 N.C. App. at 89–92.
- A submission of financial documents to consider at a child support hearing. Bullard, 117 N.C. App. at 301–02.
- An appearance at an in-chambers conference. Williams v. Williams, 46 N.C. App. 787, 788–89 (1980).
Although “almost anything … will be considered a general appearance,” there are two major exceptions to this rule. Bullard, 117 N.C. App. at 301. We’ve already discussed the first—when a defendant challenges the court’s exercise of jurisdiction over her before taking any other action—the second is when the defendant requests an extension of time in which to respond to the claims against her. Id; N.C.G.S. § 1-75.7(1). Other than these categorical exceptions, there is very little behavior that does not qualify as a general appearance. Some ancillary conduct by attorneys not “invok[ing] the adjudicatory powers of the court” have been deemed exceptions—namely, a motion for substitution of counsel (regarded as “ministerial”), Rauch v. Urgent Care Pharmacy, Inc., 178 N.C. App. 510, 512–13 (2006), and the “mere act of notifying the court of [a] client’s absence,” Matter of A.J.C., 259 N.C. App. 804, 809 (2018).
There is now an additional clear exception to the broad definition of general appearance: notice of removal to federal court.
In Blaylock v. AKG N.A., there was no question that the defendant was never properly served with process. 2022-NCCOA-549, ¶ 14. Nonetheless, after being made aware of the lawsuit through other channels, the defendant filed a notice of removal in state and federal court, removing the case to federal court. Id. at 3. The case was eventually remanded to North Carolina, where the trial court granted the defendant’s subsequent motion to dismiss for, among other things, failure of service of process and lack of personal jurisdiction. Id. at 4-6. On appeal, the plaintiff argued that the defendant corporation waived its personal jurisdiction defense because it made a general appearance when it: (1) filed a notice of removal of the case to federal court, and (2) obtained two extensions of time to respond to the lawsuit. Id. As discussed above, an extension of time is an explicit exception to the general appearance rule. Id. at ¶ 15. Whether filing a notice of removal of a case to federal court is a general appearance, however, was a question of first impression before the court of appeals.
The Blaylock court found that it is not. Removal—a process that allows a civil lawsuit to be taken out of the state court and placed under the jurisdiction of the federal court—is a creation of federal law. Id. at ¶ 19-21. Whether the case will ultimately remain under federal jurisdiction is a decision that rests solely with the federal courts. See id. at ¶ 21. In fact, a notice of removal halts all proceedings in the state court unless and until the case is remanded. Id. at ¶ 20; N.C. R. Civ. P. 12(a)(2). A general appearance, however, must invoke the authority of the state court. Thus, reasoned the court of appeals, filing a notice of removal is not a general appearance because the “North Carolina trial court does not exercise any adjudicatory or discretionary power when presented with a notice of removal.” Id. at ¶ 22.
So, while almost everything qualifies as a general appearance, there remain exceptions. Filing a notice of removal of a civil lawsuit to federal court does not waive a party’s right to challenge personal jurisdiction in North Carolina courts.