Haukaas v. Liberty Mutual Insurance Company

Filing 127

ORDER DENYING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND DENYING REQUEST FOR SANCTIONS. Signed by U.S. District Judge Karen E. Schreier on 09/15/2023. (SAC)

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

THE FIRST LIBERTY INSURANCE
CORPORATION and LIBERTY MUTUAL
INSURANCE COMPANY,
Plaintiffs,
vs.

4:20-CV-04061-KES
ORDER DENYING MOTION TO
DISMISS FOR LACK OF PERSONAL
JURISDICTION AND DENYING
REQUEST FOR SANCTIONS

EXAMWORKS, LLC,
Defendant.
ExamWorks, LLC, defendant, moves to dismiss this action under Federal
Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Docket 122.
The First Liberty Insurance Corporation (First Liberty) and Liberty Mutual
Insurance Company (Liberty Mutual), plaintiffs, oppose this motion. Docket
124. After considering the parties’ submissions and arguments, the court
issues the following order.
PROCEDURAL AND FACTUAL BACKGROUND
This case began over three years ago when Tonya Haukaas, the original
plaintiff, sued Liberty Mutual Insurance Company, alleging bad faith. Docket 1.
Haukaas amended her complaint, adding First Liberty as a defendant. See
Docket 72. In Haukaas’s amended complaint, Haukaas alleged that after
suffering an injury from work and after First Liberty and Liberty Mutual
originally accepted her worker’s compensation claim, First Liberty and Liberty
Mutual requested that she obtain an independent medical examination from

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Dr. Jefferey Nipper. See id. ¶ 19. Haukaas alleged that even though Dr. Nipper
performed a biased evaluation of Haukaas in favor of insurance companies and
in direct contradiction to Haukaas’s medical records, First Liberty and Liberty
Mutual nonetheless informed her that they would stop making payments to
Haukaas based on Dr. Nipper’s report. See id. ¶¶ 24-30.
First Liberty and Liberty Mutual denied these allegations in an answer.
See Docket 77. In the same filing, First Liberty filed a third-party complaint
against Examworks. 1 Id. at 9-12. As relevant to this order, First Liberty alleged
breach of contract and contractual indemnity. Id. at 11-12. First Liberty alleged
that “Examworks agreed to provide competent and unbiased doctors as part of
its terms, conditions and specifications as set forth in its vendor agreement
with [First Liberty and Liberty Mutual].” Id. at 11. First Liberty also referenced
actions taken by Examworks with respect to Dr. Nipper. Id. at 9. Additionally,
First Liberty alleged that “[i]f the allegations made in [Haukaas]’s amended
complaint are true, [Examworks] failed to provide the promised services in [its]
respective contract[] with [First Liberty and Liberty Mutual]” and thus breached
such contract. Id. at 12. As part of Haukaas’ amended complaint, Haukaas
alleged that First Liberty and Liberty Mutual engaged in a “pattern of conduct
of using biased [independent medical examination] doctors like Dr. Nipper to
provide biased reports as a basis to deny legitimate claims and reduce claim

In this third-party complaint, First Liberty also named O’Hara, LLC, as a
defendant, but the court eventually dismissed O’Hara from the case after all
then-existing parties jointly moved for such dismissal. See Docket 72 at 9-12;
Docket 104; Docket 110.
1

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costs.” Docket 72 ¶ 47. In response to First Liberty’s third-party complaint,
Examworks filed a motion to dismiss for failure to state a claim. See Docket 86.
This motion did not raise a lack of personal jurisdiction argument. See id.; see
also generally Docket 87.
Haukaas, First Liberty, and Liberty Mutual then jointly moved to dismiss
Haukaas’s claims against First Liberty and Liberty Mutual. Docket 98. The
court granted this motion. Docket 100. First Liberty subsequently moved to
amend its complaint against Examworks by removing Haukaas as a plaintiff,
adding Liberty Mutual as a plaintiff, and adding factual allegations. See Docket
106-1; Docket 109 at 2. Examworks stipulated to removing Haukaas but
opposed the addition of Liberty Mutual and opposed adding the factual
allegations. See Docket 113. With respect to adding Liberty Mutual and the
new factual allegations, Examworks argued that such additions would
prejudice Examworks, cause undue delay, and be futile because the amended
complaint would not survive a Rule 12(b)(6) motion. See Docket 113 at 7-9.
Examworks did not raise a personal jurisdiction argument at that time. See
generally id. The court granted First Liberty’s motion to amend the complaint.
Docket 118 at 22.
First Liberty and Liberty Mutual filed their amended complaint against
Examworks, re-asserting their breach of contract and contractual indemnity
claims. See Docket 120 ¶¶ 16-26. As part of their allegations, First Liberty and
Liberty Mutual allege that Examworks “agreed to ‘select and make available’
the practitioners who performed [independent medical examinations], to ensure
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the practitioners were properly credentialed, and to assure the quality of
services provided by said practitioners.” Id. ¶ 8. First Liberty and Liberty
Mutual’s amended complaint further references Haukaas’s claims against them
with respect to Dr. Nipper’s bias toward insurance companies, as well as
“similar allegations” against Dr. Nipper in other disputes involving other
insurance carriers. See id. ¶ 12-13. First Liberty and Liberty Mutual also allege
that based on Examworks’ contractual obligations, Examworks “knew or
should have known of the prior allegations made against Dr. Nipper[,]” but
nonetheless continued and continues to retain Dr. Nipper to perform
independent medical examinations and other work on behalf of insurers. Id.
¶ 18. Thus, according to First Liberty and Liberty Mutual, “Examworks
breached its contractual obligations to provide a competent physician to
perform [independent medical examination] work on behalf of [First Liberty and
Liberty Mutual]” by doing the following:
a. Failing to have and develop adequate policies and procedures for
verifying the quality of the physicians it provides;
b. Failing to follow the limited policies and procedures it does, in fact, have
in place for verifying the quality of the physicians it provides; and
c. Retaining physicians that it knew or should have known were facing or
have faced allegations of bias; and
d. Either failing to verify the quality of Dr. Nipper (or any allegations made
against him relating to biased conduct), or retaining him knowing of
the prior allegations against Dr. Nipper.

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Id. ¶ 19. In addition to the breach of contract claim, First Liberty and Liberty
Mutual allege in their amended complaint that Examworks failed to indemnify,
defend, and hold harmless First Liberty and Liberty Mutual. Id. ¶ 23-26.
Examworks now moves the court to dismiss the amended third-party
complaint for lack of personal jurisdiction. Docket 122. The court turns to
Examworks’ motion. 2
DISCUSSION
I.

Personal Jurisdiction
First Liberty and Liberty Mutual argue that Examworks has waived its

personal jurisdiction defense. See Docket 124 at 3. In support, First Liberty
and Liberty Mutual point out that “ExamWorks did not raise [a] lack-ofpersonal-jurisdiction defense in its opposition to [First Liberty and Liberty
Mutual’s] motion to amend the complaint, despite having a copy of the then
proposed amended complaint and asserting other affirmative defenses in
support of its argument that the amendment was futile.” Id. at 6. Additionally,
First Liberty and Liberty Mutual argue that Examworks waived its defense
because Examworks filed a Rule 12(b)(6) failure to state a claim motion after

Although Examworks originally filed a motion to dismiss for failure to state
claim with respect to First Liberty’s initial third-party complaint, the court
denied it as moot once the court granted First Liberty’s motion to file an
amended third-party complaint. See Docket 85; Docket 121. Examworks’
instant motion only argues lack of personal jurisdiction. See Docket 122; see
generally Docket 123.
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First Liberty filed its initial third-party complaint and did not raise a personal
jurisdiction argument at that time. See Docket 124 at 3-4. 3
Courts in the Eighth Circuit and across the country recognize at least
two ways in which a defendant can waive a personal jurisdiction defense. First,
“[a] litigant may, by conduct, waive objections to personal jurisdiction.” Van
Pragg v. Columbia Classics Corp., 849 F.2d 1106, 1109 (8th Cir. 1988); see also
Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir. 1990) (finding party waived personal
jurisdiction through conduct); Alger v. Hayes, 452 F.2d 841, 844 (8th Cir.
1972) (holding defendant waived a personal jurisdiction defense because his
conduct did “not reflect a continuing objection to the power of the court to act
over the defendant’s person[]”). “[A] defendant waives its personal jurisdiction
defense if submissions, appearances and filings give the plaintiff a reasonable
expectation that the defendant will defend the suit on the merits or cause the
court to go to some effort that would be wasted if personal jurisdiction is later
found lacking.” Means v. U.S. Conf. of Cath. Bishops, 836 F.3d 643, 648 (6th
Cir. 2016) (cleaned up) (quotation omitted); see also Hedeen Int’l., LLC v. Zing
Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016); PaineWebber Inc. v. Chase
Manhattan Priv. Bank (Switzerland), 260 F.3d 453, 459 (5th Cir. 2001)
(recognizing the “well-established rule that parties who choose to litigate
actively on the merits thereby surrender any jurisdictional objections”); In re
Under Civil Rule of Procedure 14(a)(2), a third-party defendant “must assert
any defense against the third-party plaintiff claim under Rule 12[.]” Thus, the
principles of waiver discussed below apply equally to third-party defendants,
such as Examworks, as they do to ordinary defendants named in original
complaints.
3

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Asbestos Prod. Liab. Litig. (No. VI), 921 F.3d 98, 105 (3d Cir. 2019) (“Precedent
of the Supreme Court and this Court further holds that the right to assert a
personal jurisdiction defense can be affirmatively and implicitly waived through
conduct.”).
When a plaintiff moves to amend its complaint, the defendant, if it
believes the court would lack personal jurisdiction over it, can at the very least
state its opposition to the motion on the grounds that the amended complaint
is futile for lack of personal jurisdiction. See, e.g., Pridgen v. Appen Butler Hill,
Inc., 2019 WL 1048950, at *3 (D. Md. Mar. 5, 2019) (defendant arguing an
amended complaint would be futile because the court lacks personal
jurisdiction over proposed defendants). Although it may not be appropriate for
a court to deny leave to amend where a defendant objects to personal
jurisdiction on behalf of proposed defendants on the grounds that the current
defendant lacks standing to do so, that concern does not exist when the
defendant is faced with a motion to amend a complaint that seeks only to add a
plaintiff and factual allegations because “[t]he personal jurisdiction
requirement recognizes and protects an individual liberty interest.”
Ins. Corp. of Ireland, Ltd. v. Campagnie des Brauxites de Guinee, 456 U.S. 694,
702 (1982) (emphasis added); see also Synthes, Inc. v. Marotta, 281 F.R.D. 217,
229-30 (E.D. Pa. 2012) (collecting cases finding that “a defendant lacks
standing to raise absence of personal jurisdiction on behalf of proposed codefendants”). But see Stenger v. Marriot Int’l Corp. Headquarters, 2016 WL
223681, at *2 (S.D. Ohio Jan. 19, 2016) (accepting defendant’s opposition to
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plaintiff’s motion to amend because such amendments would be futile given
the court lacked personal jurisdiction over proposed new defendant). A
defendant’s failure to raise a personal jurisdiction argument in opposing a
motion to amend the complaint indicates a willingness to litigate the case on its
merits. See Hamm v. Wyndham Resort Dev. Corp., 2020 WL 5995050, at *6
(M.D. Tenn. Oct. 9, 2020).
The second way in which a defendant can waive a personal jurisdiction
defense resides in the Federal Rules of Civil Procedure. Under Rule 12(b)(2), a
party may raise a lack of personal jurisdiction defense. Fed. R. Civ. P. 12(b)(2).
But Rule 12(g) limits the ability to do so: a party must ordinarily include this
defense in its first Rule 12 motion. Under Rule 12(g)(2), “a party that makes a
motion under this rule must not make another motion under this rule raising a
defense or objection that was available to the party but omitted from its earlier
motion.” Fed. R. Civ. P. 12(g)(2). Instead, “[a] party waives any defense listed in
Rule 12(b)(2)-(5) by omitting it from a motion in the circumstances described in
Rule 12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A). Thus, “[i]f one or more of these
defenses are omitted from the initial motion but were available to the movant at
that time, they are permanently lost.” 5 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1391 (3d ed.).
“The filing of an amended complaint will not revive the right to present by
motion defenses that were available but were not asserted in timely fashion
prior to the amendment of the pleading.” Id. § 1388. Instead, the relevant
determination is whether the amended complaint changes the theory or scope
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of the case such that the defendant could have raised the defense at the time of
the original complaint. See Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194,
1202 (11th Cir. 2011); Burton v. Ghosh, 961 F.3d 960, 967-68 (7th Cir. 2020);
Sears Petroleum & Transp. Corp. v. Ice Ban Am., Inc., 217 F.R.D. 305, 307
(N.D.N.Y. 2003) (“While it is true that an amended complaint ordinarily
supersedes a prior complaint, and renders it of no legal effect[,] [i]t is also true
that if the amended complaint also contains new matter, the defendant may
bring a second motion under Rule 12 to object to the new allegations only.”);
Davis v. Bechanan Cty., 2019 WL 7116363, at *3 (W.D. Mo. Dec. 23, 2019)
(collecting cases finding the same). Ultimately, the inquiry is whether the
defendant had reasonable notice of the defense at the time the plaintiff filed the
original complaint. See Appel v. Bos. Nat’l Title Agency, LLC, 2019 WL 3858888,
at *3, 7 (S.D. Cal. Aug. 15, 2019).
The court in Hamm, 2020 WL 5995050, applied these principles of
waiver in the context of a defendant’s attempt to raise a lack of personal
jurisdiction defense and found that both methods of waiver, as discussed
above, applied. In Hamm, the plaintiffs sued a group of defendants for various
causes of action. See 2020 WL 599505, at *1-2. The defendants filed a motion
to dismiss for failure to state a claim under Rule 12(b)(6) but did not include a
motion to dismiss for lack of personal jurisdiction. Id., at *2. The court granted
the defendants’ motion to dismiss but gave the plaintiffs leave to file a motion
to amend their complaint. Id. The plaintiffs then moved to amend the
complaint and attached a proposed amended complaint that cured the
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deficiencies in the original complaint. See id. The defendants opposed the
motion to amend on futility grounds based on Rule 12(b)(6), arguing that most
of the claims were time barred and that the plaintiff failed to satisfy the
applicable pleading standards. See id. Again, the defendants did not raise a
personal jurisdiction argument in opposing the motion to amend. Id. The court
granted in part and denied in part the plaintiffs’ motion to amend, allowing the
plaintiff to file its amended complaint but narrowing its scope. See id. The
defendants then moved to dismiss the case for lack of personal jurisdiction.
See id., at *1-2.
The court in Hamm denied the defendants’ motion to dismiss for lack of
personal jurisdiction because the defendants waived the defense by conduct
and under Rule 12. Id., at *6. With respect to the first way—waiver by
conduct—the court found that “by litigating the plaintiffs’ later Motion to
Amend without reserving a personal jurisdiction defense, the defendant ‘gave
the plaintiffs a reasonable expectation that the defendant would defend the suit
on the merits or caused the court to go to some effort that would be wasted if
personal jurisdiction were later found lacking.’ ” See id., at *6 (M.D. Tenn. Oct.
9, 2020) (quoting Innovation Ventures, LLC v. Custom Nutrition Lab’ys., 912
F.3d 316, 332-33 (6th Cir. 2018) (cleaned up)). In short, by litigating the
plaintiffs’ motion to amend on Rule 12(b)(6) and other grounds without also
objecting to personal jurisdiction, the defendant “failed to signal either to the
plaintiffs or to the court that they intended to contest personal jurisdiction.” Id.

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Turning to the second way in which the defendants in Hamm waived its
personal jurisdiction defense, the defendants failed to raise a personal
jurisdiction defense after the plaintiffs filed their original complaint. Id., at *5.
Observing that “the defense of lack of personal jurisdiction was clearly
available to [the defendants] from the time the plaintiffs filed the original
Complaint[,]” the court held that the defendants’ failure to raise the defense
necessarily waived their ability to do so later. Id. That was true even though the
plaintiffs’ amended complaint contained additional factual allegations, because
such additions did not “detract from the fact that the affirmative allegations in
the original Complaint failed to establish a basis for the exercise of personal
jurisdiction over [the defendants] in this district with respect to the same
[claims that were subject to the additional factual allegations].” Id.
Hamm is on all-fours with this instant case because both forms of waiver
in Hamm are present in this case. Starting with the first—waiver by conduct—
First Liberty filed a motion to amend its third-party complaint, in part to add
Liberty Mutual as a plaintiff and in part to add factual allegations. See Docket
106; Docket 106-1; Docket 109 at 2. First Liberty attached a proposed
complaint, which showed that it sought to add Liberty Mutual as a plaintiff.
See Docket 106-1. Examworks opposed this amendment on the grounds that
the amendments would be futile. Docket 113 at 7. More specifically,
Examworks argued the amendments were futile because the amended
complaint would not survive a Rule 12(b)(6) motion for failure to state a claim.
See id. at 7-9. At no point in its opposition to First Liberty’s motion to amend
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the complaint did Examworks raise a lack of personal jurisdiction defense as to
either First Liberty or Liberty Mutual, even though Examworks specifically
objected to adding Liberty Mutual as a party on other grounds. 4 See id. at 2-3,
7-9. Instead, Examworks proposed that if the court refuses to grant leave to
amend the complaint, Liberty Mutual could then commence a separate suit
against Examworks and then “attempt to combine that separate action with the
[lawsuit between First Liberty and Examworks] if appropriate and necessary.”
Id. at 4.
Just as in Hamm, Examworks’ decision to oppose First Liberty’s motion
to amend on Rule 12(b)(6) grounds—without raising a personal jurisdiction
defense—“failed to signal either to the plaintiffs or to the court that they
intended to contest personal jurisdiction.” See Hamm, 2020 WL 5995050, at
*6. Not only did Examworks fail to argue the court lacked personal
jurisdiction, but Examworks suggested that Liberty Mutual file a separate
lawsuit and then attempt to combine the actions into one if appropriate and
necessary. See Docket 113 at 4. Although this suggestion does not conclusively
demonstrate Examworks’ affirmative consent to the court exercising personal
jurisdiction, it gave Liberty Mutual and First Liberty “a reasonable expectation
that [Examworks] will defend the suit on the merits or cause the court to go to
Although a party need not explicitly state it is objecting to personal
jurisdiction using the words “personal jurisdiction,” see Valone v. CJS Sols.
Grp., LLC, 9 F.4th 861, 964-65 (8th Cir. 2021), merely objecting to the addition
of Liberty Mutual, without more, does not constitute an objection to personal
jurisdiction, see TLC Vision (USA) Corp. v. Freeman, 2013 WL 2181267, at *6
(E.D. Mo. May 20, 2013) (“The Eighth Circuit has held that a personal
jurisdiction defense must be raised in a clear and unambiguous way.”).
4

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some effort that would be wasted if personal jurisdiction is later found lacking.”
Means, 836 F.3d at 648. Thus, the court finds that Examworks waived its
personal jurisdiction defense with respect to both First Liberty and Liberty
Mutual’s claims based on its conduct by failing to object to personal
jurisdiction when First Liberty sought to amend its complaint.
Examworks also waived its personal jurisdiction defense (at least with
respect to First Liberty’s claims) through the second method of waiver
discussed in Hamm—by failing to raise a personal jurisdiction argument after
First Liberty filed its initial third-party complaint against Examworks. Instead,
Examworks filed a motion to dismiss for failure to state a claim. See Docket 86;
Docket 87. Acknowledging it failed to object to personal jurisdiction after First
Liberty’s third-party complaint, Examworks nonetheless argues that such
failure is not fatal because the amended complaint “assert[ed] entirely different
claims than First Liberty’s Third-Party Complaint.” Docket 126 at 2-3. 5

Examworks also argues that the amended complaint added Liberty Mutual for
the first time and thus Examworks’ failure to object to the original third-party
complaint cannot constitute a waiver of Examworks’ personal jurisdiction
defense. See Docket 126 at 1-3. The court recognizes that First Liberty’s thirdparty complaint did not include Liberty Mutual as a plaintiff. See Docket 77.
But even if Examworks’ lack of personal jurisdiction defense was not
“available” to Examworks with respect to Liberty Mutual at the time First
Liberty filed its third-party complaint under Rule 12(g)(2), as discussed above,
Examworks was on notice of—and in fact specifically opposed—First Liberty’s
attempt to add Liberty Mutual as a party when First Liberty moved to amend
its complaint against Examworks. See Docket 106; Docket 113 at 3-6. Even so,
Examworks failed to object to personal jurisdiction in opposing this
amendment. See generally Docket 113. Thus, assuming without deciding that
Rule 12(g)(2) is inapplicable to Examworks’ failure to object to personal
jurisdiction at the time of First Liberty’s original third-party complaint with
respect to Liberty Mutual, the court has already found that Examworks waived
5

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As discussed above, it is true that amended complaints that significantly
alter the scope or change the theories of the original complaint can, in certain
circumstances, make available a defense that was previously unavailable. See,
e.g., Krinsk, 654 F.3d at 1202. But here, when comparing First Liberty’s
original third-party complaint with First Liberty’s amended complaint, the
court finds that nothing about First Liberty’s amended complaint reveals any
potential deficiencies in personal jurisdiction that were unavailable to
Examworks at the time of First Liberty’s original third-party complaint. In both
complaints, First Liberty alleged that Examworks is liable for breach of
contract and contractual indemnity. See Docket 77 at 11; Docket 120 ¶¶ 1626. In support, both complaints cite Examworks’ agreement with First Liberty
to provide First Liberty with qualified physicians to perform independent
medical evaluations. See Docket 77 at 9; Docket 120 ¶¶ 7-9. Additionally, both
complaints specifically reference Dr. Nipper’s evaluation of Haukaas as
evidence that Examworks breached the contract. See Docket 77 at 9; Docket
120 ¶ 12. Thus, Examworks was on notice of Dr. Nipper’s alleged role in First
Liberty’s allegations, as well as Dr. Nipper’s potential connections (or
lackthereof) to South Dakota.
Examworks points out that First Liberty’s amended complaint focuses
“much more broadly on ExamWorks’ policies and procedures regarding its
quality verification and retention process for physicians, which matters have no
its personal jurisdiction argument through its conduct with respect to Liberty
Mutual’s (and First Liberty’s) claims.
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connection to South Dakota.” See Docket 126 at 3. Instead of rooting its
allegations in Dr. Nipper’s singular independent medical examination of
Haukaas, Examworks argues, First Liberty now alleges that “Examworks’
alleged breaches are ‘ongoing in nature’ and ‘continue to expose Plaintiffs and
other insurers to ongoing damages.’ ” See id. (citing Docket 120 ¶ 20).
According to Examworks, First Liberty’s decision to expand the scope of its
claims “removed the required nexus between such claims and any contacts
that ExamWorks may have with the State of South Dakota.” Id.
The court is unpersuaded by this argument for two reasons. First,
although First Liberty more explicitly stated its allegations of Examworks’
ongoing pattern of failing to properly screen physicians in its amended
complaint, First Liberty did allege in its original third-party complaint that “[i]f
the allegations made in [Haukaas]’s amended complaint are true, [Examworks]
failed to provide the promised services in [its] respective contract[] with [First
Liberty and Liberty Mutual]” and thus breached such contract. Docket 77
¶¶ 23-24. In turn, Haukaas’s amended complaint alleged that First Liberty
and Liberty Mutual engaged in a “pattern of conduct of using biased
[independent medical examination] doctors like Dr. Nipper to provide biased
reports as a basis to deny legitimate claims and reduce claim costs.” Docket 72
¶ 47. Putting these allegations together, Examworks was on notice that First
Liberty, through incorporating Haukaas’s complaint, raised allegations about
Examworks’ pattern of failing to provide competent physicians on an ongoing

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basis. Thus, it is debatable whether the amended complaint even expands,
rather than simply clarifies, the scope of the first complaint.
Second, even if First Liberty’s amended complaint expanded the scope of
its claims against Examworks to include not solely Dr. Nipper’s evaluation of
Haukaas but also additional alleged failures of Examworks to adequately
screen physicians, this expansion does not explain why Examworks could not
have raised a personal jurisdiction defense at the time of First Liberty’s original
third-party complaint. In the context of personal jurisdiction, when a plaintiff
expands its same claims against the same defendant by alleging additional
related acts that the defendant took, as compared to the acts alleged in the
original complaint, such additional acts seemingly can only expand potential
personal jurisdiction over the defendant.
This case does not involve one in which First Liberty abandoned its claim
regarding Dr. Nipper’s evaluation of Haukaas in South Dakota. Nor did First
Liberty first allege widespread failures to properly screen doctors and then later
narrow its claims in its amended complaint to one specific doctor. Rather, in its
amended complaint, First Liberty incorporated Dr. Nipper’s specific evaluation
of Haukaas and expanded on it, alleging that this evaluation is part of an
ongoing pattern of Examworks failing to properly screen physicians. See Docket
120 ¶¶ 12, 16-26. Examworks appears to concede this reality when it argues
that First Liberty “expand[ed] the scope” of the original third-party complaint’s
claims. See Docket 126 at 3.

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Because of this expansion, if anything, Examworks had a stronger
reason to object to personal jurisdiction when First Liberty filed its initial thirdparty complaint as compared to the amended complaint. First Liberty’s original
third-party complaint gave Examworks reasonable notice of a personal
jurisdiction defense, and such defense’s availability was at best unaltered by
the additional allegations in First Liberty’s amended complaint, and at worst
weakened, not strengthened. See Appel, 2019 WL 3858888, at *3, 7. Thus, the
court finds that Examworks’ personal jurisdiction defense was “available” to
Examworks when Examworks filed its motion to dismiss the original thirdparty complaint for failure to state a claim. See Fed. R. Civ. P. 12(g)(2); Docket
86. Because Examworks failed to raise an available personal jurisdiction
defense at the same time it filed its 12(b)(6) motion regarding First Liberty’s
original third-party complaint, Examworks waived its right to do so. See Fed. R.
Civ. P. 12(b)(1)(A); Wright & Miller, Federal Practice and Procedure § 1391.
Based on this waiver, the court denies Examworks’ motion to dismiss for lack
of personal jurisdiction. 6
II.

Sanctions
In a single, undeveloped footnote and without citing the Rule of Civil

Procedure upon which First Liberty and Liberty Mutual depend, First Liberty
and Liberty Mutual ask the court to sanction Examworks and to award First
Liberty and Liberty Mutual the costs and fees they had to expend litigating

Because the court finds that Examworks waived it personal jurisdiction
defense, the court does not reach Examworks’ motion on its merits.
6

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Examworks’ instant motion. See Docket 124 at 6 n.2. Construing this footnote
as a request for sanctions under Federal Rule of Civil Procedure 11, First
Liberty and Liberty Mutual have failed to comply with Rule 11’s procedural
requirements. Under Rule 11(c)(2), a party seeking sanctions must file a
separate motion that “describe[s] the specific conduct that allegedly violates
Rule 11(b).” Fed. R. Civ. P. 11(c)(2). Here, First Liberty and Liberty Mutual
failed to file a separate motion. Although First Liberty and Liberty Mutual state
that Examworks’ motion to dismiss for lack of personal jurisdiction is
“baseless,” they do not further elaborate and thus have failed to “describe the
specific conduct that allegedly violates Rule 11(b).” Id. Thus, the court denies
First Liberty and Liberty Mutual’s request for sanctions for failure to abide by
Rule 11’s procedural requirements. See Gordon v. Unifund CCR Partners, 345
F.3d 1028, 1029-30 (8th Cir. 2003) (reversing district court’s award of Rule 11
sanctions because moving party failed to comply with Rule 11’s procedural
requirements).
CONCLUSION
Examworks, through its conduct and under Federal Rule of Civil
Procedure 12, has waived its ability to object to lack of personal jurisdiction.
First Liberty and Liberty Mutual have also failed to comply with Rule 11’s
procedural requirements regarding sanctions. Thus, it is
ORDERED
1) that Examworks’ motion to dismiss for lack of personal jurisdiction
(Docket 122) is DENIED; and
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Case 4:20-cv-04061-KES Document 127 Filed 09/15/23 Page 19 of 19 PageID #: 2247

2) First Liberty and Liberty Mutual’s request for sanctions (Docket 124
at 6 n.2) is DENIED.
Dated September 15, 2023
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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