Salud Natural Entrepreneur, Inc. v. Nutricento Internacional, Inc., No. 09 C 4417, Slip Op. (N.D. Ill. Jan. 27, 2011) (Zagel, J.).
Judge Zagel denied defendant Azteca Products’ ("Azteca") Fed. R. Civ. P. 12(b)(2) motion to dismiss for lack of personal jurisdiction in this Lanham Act case. Azteca’s officer, a non-lawyer, purported to file an answer on Azteca’s behalf. Azteca then hired counsel who participated in Rule 26 scheduling conferences. Azteca’s officer then filed a Rule 12(b)(2) motion to dismiss without counsel, which the Court struck because it was not filed by counsel, and a corporate entity cannot act pro se. The Court then entered a default judgment and an injunction against Azteca. Azteca hired counsel and asked through counsel that the default be vacated. The Court vacated the judgment and agreed to consider whether Azteca’s personal jurisdiction arguments had been waived. Noting the "bizarre posture of the case, the Court held that Azteca had not preserved its jurisdiction arguments.
The answer did not waive Azteca’s arguments because as a pro se filing it was treated as never having been filed. But counsel did participate in Rule 26(f) conferences, although he filed no notice of appearance, and offered no suggestion that Azteca would challenge jurisdiction during that time. Furthermore, jurisdiction was challenged for the first time more than thirty days after the other defendants settled based upon discussions that Azteca did not participate in. Regardless of the legal impact of Azteca’s filings, by the time Azteca challenge jurisdiction, plaintiff had developed a "reasonable expectation" that Azteca would defend itself in Illinois.