The Conditional Acceptance and the Late Personal-Jurisdiction Motion

Waived. Rule 12(g)(1) requires a party that files a pre-answer motion to raise in that motion every defense then available under Rule 12(b)(2)-(5). Rule 12(h)(1)(A) provides that a defense omitted from that motion is waived. Northstar's Rule 12(b)(6) motion was its first response to the complaint; filed before the answer, it tolled the answer deadline under Rule 12(a)(4)(A), so it was Northstar's one bundled opportunity to raise jurisdictional objections.

Personal jurisdiction is waivable, unlike subject-matter jurisdiction (Rule 12(h)(3) preserves that at any time). Several related traps:

• Filing an answer or a counterclaim first would also waive the defense.
• A later motion is not saved by a vague 'reservation of rights' the defendant never actually made.
• A forum-selection clause consenting to Michigan courts is not consent to Ohio jurisdiction; it cuts against Northstar.
• Once waived, the court need not dismiss, and a sua sponte dismissal on a waived defense is on shaky ground.

The § 1404(a) motion is different. It is not a Rule 12(b) defense, so Rule 12(h)(1) does not automatically bar it. But a defendant can waive a forum-selection defense by conduct, and the plaintiff may argue that three weeks of silence after the Rule 12(b)(6) ruling plus the earlier omission shows a litigation strategy inconsistent with the clause. On these facts the delay is short and the plaintiff cannot show real prejudice, so the transfer motion should be heard on its merits even though the jurisdictional objection is gone.

Enforce it-but through § 1404(a) transfer, not § 1406(a) dismissal. Atlantic Marine Construction Co. v. U.S. District Court (2013) supplies the framework: a valid forum-selection clause should be given 'controlling weight in all but the most exceptional circumstances.'

Mechanics:

1. § 1406 is unavailable. That provision applies where the clause makes the plaintiff's chosen forum 'wrong' or improper. Venue in the Northern District of Ohio is proper under § 1391 because Buckeye resides there and the design, sale, and delivery occurred there.
2. § 1404(a) is the vehicle. The court adjusts the ordinary factors: the plaintiff's choice of forum receives no weight, and the private-interest factors (witness convenience, cost of attendance, access to evidence, enforceability of judgment) are deemed to favor the contractually designated forum because the parties bargained for them.
3. Only public-interest factors remain-docket congestion, the local interest in local controversies, familiarity with governing law, and avoidance of conflicts of law. They rarely defeat a clause.
4. Where it goes. The clause covers 'state and federal courts sitting in Kent County, Michigan.' The federal court there is the Western District of Michigan, Southern Division (Grand Rapids).
5. Transfer does not require personal jurisdiction in the transferor court, so the Rule 12(b)(2) waiver does not block the move.
6. Validity challenges-fraud, overreaching, or a forum that deprives the plaintiff of a remedy-are the only realistic escapes. Nothing in this record supports them; sophisticated commercial parties negotiated by email and signed the agreement.

Ohio would have specific personal jurisdiction.

Statute. Ohio's long-arm, R.C. 2307.382(A)(1), reaches a defendant 'transacting any business in this state.' Ohio courts treat the statute as coextensive with the constitutional limit, so the statutory and due-process inquiries merge.

Purposeful availment. Northstar deliberately reached into Ohio: $2.1 million in annual sales (6% of revenue), an order-taking website, and technicians sent to Lima on four service calls. These are purposeful contacts, not the mere fortuity of a product's random arrival in the state. Because Northstar sells directly rather than through an unknowing distributor, the stream-of-commerce debate is unnecessary.

Relatedness. The claim must arise out of or relate to the Ohio contacts. Buckeye's design and warranty claims grow directly out of the Ohio sale, delivery, and installation visits. This is not a case where the plaintiff was injured by conduct unconnected to the forum contacts.

Reasonableness. The Burger King factors favor jurisdiction: Northstar's burden in litigating in Ohio is modest; Ohio has a strong interest in protecting its resident corporation and regulating products used in its plants; Buckeye has an interest in convenient and effective relief; the interstate judicial system benefits from the forum where the witnesses and records sit; and the states' shared interest in efficient dispute resolution is served. A website alone might not suffice, but the sales and technician visits independently do.

So the motion would fail on the merits. Northstar's real protection was the forum-selection clause, and that is pursued through § 1404(a).