Moser v. Benfytt, Inc., No. 19-56224 (9th Cir. 2021)
Annotate this Case
The district court certified two nationwide classes in an action under the Telephone Consumer Protection Act. Moser, a resident of California, sued the successor of HII, alleging that HII was responsible for unwanted sales calls that violated the TCPA. HII was incorporated in Delaware and represented that its principal place of business was Florida. The district court had specific personal jurisdiction over Moser’s own claims against HII but HII argued that it lacked personal jurisdiction over the claims of non-California plaintiffs under the Supreme Court’s 2017 “Bristol-Myers” decision. The district court concluded that HII had waived its personal jurisdiction defense by not raising it at the motion to dismiss stage.
The Ninth Circuit vacated, first holding that it had jurisdiction under Rule 23(f) to review the personal jurisdiction and waiver issues. Agreeing with the Fifth and D.C. Circuits, the court held that HII had not waived its personal jurisdiction objection to class certification by failing to assert the defense at the Rule 12 motion to dismiss stage. At the motion to dismiss stage, lack of personal jurisdiction over unnamed, non-resident putative class members was not an ”available” Rule 12(b) defense.
Court Description: Class Certification. The panel vacated the district court’s order certifying two nationwide classes in an action under the Telephone Consumer Protection Act, and remanded. Kenneth Moser, a resident of California, sued Benefytt Technologies, Inc., formerly known as Health Insurance Innovations, Inc. (“HII”), alleging that HII was responsible for unwanted sales calls that violated the TCPA. HII was * The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. MOSER V. BENEFYTT 3 incorporated in Delaware and represented that its principal place of business was Florida. There was no dispute that the district court had specific personal jurisdiction over Moser’s own claims against HII. Moser asked the district court to certify two nationwide classes, and HII argued that the district court could not do so because it lacked personal jurisdiction over the claims of non-California plaintiffs under Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S. Ct. 1773 (2017) (Due Process Clause prohibited California state court from exercising specific personal jurisdiction over non-resident plaintiffs’ claims in a mass action against a non-resident company). The district court concluded that HII had waived its personal jurisdiction defense by not raising it at the motion to dismiss stage, and the district court certified the classes. The court of appeals granted HII leave to appeal the class certification order under Fed. R. Civ. P. 23(f). Explaining that its conclusion was consistent with that of the Fifth and Seventh Circuits, and citing BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021), the panel held that it had jurisdiction under Rule 23(f) to review the personal jurisdiction and waiver issues that formed part of the district court’s class certification decision. Agreeing with the Fifth and D.C. Circuits, the panel held that the district court erred in concluding that HII waived its personal jurisdiction objection to class certification by failing to assert the defense at the Rule 12 motion to dismiss stage. The panel held that, at the motion to dismiss stage, lack of personal jurisdiction over unnamed, non-resident putative class members was not an ”available” Rule 12(b) defense. The panel therefore vacated the class certification order, leaving it to the district court on remand to address the merits of HII’s Bristol-Myers objection to class certification. 4 MOSER V. BENEFYTT Dissenting, District Judge Cardone wrote that the majority acted contrary to law in holding that Rule 23(f) conferred appellate jurisdiction over an exercise of personal jurisdiction.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.