UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

GLOBAL ARCHERY PRODUCTS, INC., 

 

 Plaintiff, 

 

v. 

 

JORDAN GWYTHER d/b/a 

LARPING.ORG and UPSHOT ARROWS, 

 Defendant. 

 Case No.: 1:15-CV-297-JVB-SLC 

OPINION AND ORDER 

Defendant claims this Court lacks personal jurisdiction over him and venue is improper. 

For the following reasons, the Court finds it lacks personal jurisdiction over Defendant, and 

therefore dismisses this case. The Court need not reach the issue of venue. 

A. Background

 Plaintiff Global Archery Products, Inc., and Defendant Jordan Gwyther d/b/a Larping.org 

and Upshot Arrows are both in the business of non-lethal arrows. Plaintiff sued Defendant for: 

(1) patent infringement; 

(2) trademark infringement, false advertising, and unfair competition in violation of 

federal trademark law; and 

(3) tortious interference with contractual relationships, tortious interference with 

business relationships, criminal mischief, and deception in violation of Indiana 

law. 

(Compl., DE 1 at 1.) 
2 

 Plaintiff is an Indiana corporation, with its principal place of business in Indiana. 

(Compl., DE 1 at 1.) Defendant lives in Washington State. (Answer Compl., DE 11 at 2.)

 In his Answer, Defendant denies this Court has personal jurisdiction over him. (Answer 

Compl., DE 11 at 3–4, 27.) 

 Defendant again contests personal jurisdiction in the Report of Parties’ Planning 

Meeting: “Mr. Gwyther denies that this court has personal jurisdiction over him.” (RPPM, DE 15 

at 1.) 

 On February 1, 2016, Defendant moved for relief from local patent rules, for limited 

discovery, and for a show-cause hearing regarding dismissal pursuant to Rule 56. On February 

22, 2016, Magistrate Judge Collins suspended the local patent rules and granted limited 

discovery, but did not grant a show-cause hearing. 

 On February 26, 2016, the Court ordered the parties to brief the issues of personal 

jurisdiction and venue. The parties fully complied in the following months. Plaintiff’s briefs 

focus almost exclusively on the argument that Defendant waived these defenses. 

 On March 31, 2016, Plaintiff stipulated to the dismissal of the patent counts with 

prejudice, pursuant to Rule 41(a)(1)(A)(ii). (Stip. Dismissal Patent Counts, DE 40.) 

 On May 13, 2016, Plaintiff admitted the Court lacks personal jurisdiction over Defendant 

absent waiver: “If the Court concludes that the multitude of Mr. Gwyther’s actions did not waive 

Mr. Gwyther’s claims of lack of personal jurisdiction and improper venue, then this action 

should be dismissed.” (Pl.’s Reply Supp. Mot. Stay Disc., DE 48 at 4.) 
3 

B. Discussion 

 Because Plaintiff agrees that absent a waiver, this Court has no personal jurisdiction over 

Defendant, the case before this Court hinges on whether Defendant waived his personal 

jurisdiction defense. 

 While admitting Defendant raised the personal jurisdiction defense in his Answer and 

subsequently, Plaintiff argues he waived this defense by moving on February 1, 2016, for relief 

from local patent rules, for limited discovery, and for a show-cause hearing (DE 16); by 

supporting that motion; and by otherwise advancing this litigation. 

(1) Legal standards regarding waiver 

 Lack of personal jurisdiction is a Rule 12(b)(2) defense. A defendant must assert such a 

defense in the responsive pleading if one is required, but a defendant may assert such a defense by 

motion before filing a responsive pleading. Fed. R. Civ. P. 12(b). 

 A defendant waives a personal jurisdiction defense either by failing to raise it by a Rule 

12 motion, or by failing to include it in a responsive pleading. Fed. R. Civ. P. 12(h). 

 A defendant also waives a personal jurisdiction defense by violating either of the two 

prongs in the test set forth in Mobile Anesthesiologists: 

To waive or forfeit a personal jurisdiction defense, a defendant must give a 

plaintiff a reasonable expectation that it will defend the suit on the merits or 

must cause the court to go to some effort that would be wasted if personal 

jurisdiction is later found lacking. 

Mobile Anesthesiologists Chi., LLC v. Anesthesia Assoc.’s of Houston Metroplex, 623 F.3d 440, 

443 (7th Cir. 2010). 
4 

(2) Analysis

 Defendant asserted his personal jurisdiction defense (twice) in his Answer. (Answer 

Comp., DE 11 at 3–4, 27.) Defendant therefore did not waive this defense under Rule 12(h). See 

also Am. Patriot Ins. Agency v. Mut. Risk Mgmt., 364 F.3d 884, 887 (7th Cir. 2004) (regarding 

the venue defense: “The defendant can move as early as he wants but he is not required to file a 

motion. He has a right to wait until he files his answer.”) 

 Nor did Defendant waive this defense under the two-pronged Mobile Anesthesiologists

test. 

 Regarding the first prong, Defendant’s actions did not give Plaintiff a reasonable 

expectation that Defendant would defend the suit on the merits, and drop his personal 

jurisdiction defense. Defendant raised the defense in his Answer. Defendant raised the defense 

again in the Report of Parties’ Planning Meeting. 

 As Plaintiff notes, it is true that Defendant filed a motion seeking various relief after the 

Answer and the Report of Parties’ Planning Meeting. Defendant sought relief from the local 

patent rules, limitations on discovery, and a show-cause hearing regarding dismissal pursuant to 

Rule 56. (Def.’s Mot. Relief. L.R., Limited Disc., Show-Cause Hr’g, DE 16.) But Defendant’s 

requests regarding the local patent rules and discovery were perfunctory and relatively minor, 

and Magistrate Judge Collins easily granted them. (Prelim. Pretrial Conf., DE 33.) And 

Defendant’s request for a show-cause hearing regarding Rule 56 was premature, so Magistrate 

Judge Collins simply reminded the parties not to file any summary judgment motions until this 

Court holds a further scheduling conference. (Id.) 
5 

 It is also true that Defendant engaged in other litigation conduct, like agreeing to a 

mediator. But these also were only perfunctory, relatively minor activities. From an objective 

view, Defendant did not give Plaintiff a reasonable expectation that Defendant would defend the 

suit on the merits, and drop his personal jurisdiction defense, given that Defendant raised the 

defense early and often. (Answer Compl., DE 11 at 3–4, 27; RPPM, DE 15 at 1.) Thus, the first 

prong does not support waiver or forfeiture. 

 Regarding the second prong, Defendant did not cause the Court to go to some effort that 

would be wasted if personal jurisdiction is later found lacking. The Court granted an application 

to appear pro hac vice (DE 18); conducted a telephonic hearing regarding preliminary matters 

(DE 20); entered a minute order setting certain deadlines (DE 26); held a telephonic Rule 16 

preliminary pretrial conference and quickly disposed of Defendant’s motion for relief from the 

local patent rules, etc. (DE 33); ordered the parties to brief the issues of personal jurisdiction and 

venue (DE 34); and granted leave for an amicus curiae brief (DE 36). Again, these are 

perfunctory, relatively simple actions, only some of which were caused by the Defendant. 

Defendant has not caused the Court to expend substantial judicial resources or effort. 

Moreover, any effort the Defendant caused the Court to expend will not be wasted if the Court 

dismisses this case for lack of personal jurisdiction because any such effort was incidental to 

moving the case to complete briefing on the issue of personal jurisdiction. Thus, the second 

prong does not support waiver or forfeiture. 

 Defendant was not testing the Court to see which way the wind blew. Rather, Defendant 

raised his personal jurisdiction defense in his Answer, and then raised it again. (Answer Compl., 

DE 11 at 3–4, 27; RPPM, DE 15 at 1.) 
6 

Mobile Anesthesiologists supports the conclusion that Defendant did not waive or forfeit 

his personal jurisdiction defense. In that case, the Seventh Circuit concluded the defendant did 

not waive or forfeit its personal jurisdiction defense, and affirmed dismissal. Mobile 

Anesthesiologists, 623 F.3d 440. The defendant had filed a motion to continue a preliminary 

injunction hearing, and had requested expedited discovery to prepare for the hearing. Id. at 443. 

Thirteen days after filing that motion, the defendant filed a motion to dismiss for lack of personal 

jurisdiction. Id. The Seventh Circuit held that the “preliminary actions do not come close to what 

is required for waiver or forfeiture.” In the instant case, Defendant raised its personal jurisdiction 

defense at an even earlier procedural stage: in its first filing with the Court. Neither of the two 

prongs set out in Mobile Anesthesiologists support waiver. 

 The Court concludes Defendant did not waive or forfeit his personal jurisdiction defense. 

 As for the merits of this defense, Plaintiff bears the burden of establishing that the Court 

has personal jurisdiction over Defendant. Advanced Tactical Ordnance Sys.’s, LLC v. Real 

Action Paintball, Inc., 751 F.3d 796, 799 (7th Cir. 2014). In its personal jurisdiction briefs, 

Plaintiff has not presented sufficient evidence to counter Defendant’s claims, and Plaintiff’s 

argument regarding personal jurisdiction is limited to a footnote and the last half of the last 

paragraph of the last brief. In any event, Plaintiff concedes that the Court lacks personal 

jurisdiction over Defendant, absent waiver. (Pl.’s Reply Supp. Mot. Stay Disc., DE 48 at 4.) 

C. Conclusion 

The Court concludes that Defendant has not waived or forfeited his personal jurisdiction 

defense, and that the Court lacks personal jurisdiction over Defendant. 
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 Therefore, the Court DISMISSES this case. 

SO ORDERED on May 25, 2016. 

 s/ Joseph S. Van Bokkelen 

 JOSEPH S. VAN BOKKELEN 

 UNITED STATES DISTRICT JUDGE