Kenneth J. Moser, individually and on Behalf of All Others Similarly Situated v. BENEFYTT , INC.; NATIONAL CONGRESS OF EMPLOYERS , INC., a Delaware Corporation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH J. M OSER, individually and
on Behalf of All Others Similarly
Situated,
Plaintiff-Appellee,
v.
BENEFYTT , INC.; NATIONAL
CONGRESS OF EMPLOYERS , I NC., a
Delaware Corporation,
Defendants-Appellants,
and
UNIFIED LIFE I NSURANCE COMPANY ,
I NC., a Texas Corporation;
COMPANION LIFE I NSURANCE
COMPANY , a South Carolina
Corporation; DONISI J AX , I NC., AKA
Nationwide Health Advisors, a
Florida Corporation; CHARLES
DONISI , an individual; EVAN
J AXTHEIMER, an individual; HELPING
HAND HEALTH GROUP , I NC., a
Florida Corporation; ANTHONY
M ARESCA, an individual; M ATTHEW
HERMAN, an individual,
Defendants.
No. 19-56224
D.C. No.
3:17-cv-01127-
WQH-KSC
OPINION

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2 M OSER V. BENEFYTT
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted May 13, 2021
Pasadena, California
Filed August 10, 2021
Before: Jay S. Bybee and Daniel A. Bress, Circuit Judges,
and Kathleen Cardone,* District Judge.
Opinion by Judge Bress;
Dissent by Judge Cardone
SUMMARY**
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.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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M OSER 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.

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4 M OSER 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.
COUNSEL
Anne M. Voigts (argued), King & Spalding LLP, Palo Alto,
California; Matthew V.H. Noller, King & Spalding LLP,
Sacramento, California; David L. Balser, Zachary A.
McEntyre, and Danielle Chattin, King & Spalding LLP,
Atlanta, Georgia; for Defendants-Appellants.
Matthew W.H. Wessler (argued), Gupta Wessler PLLC,
Washington, D.C.; Neil K. Sawhney, Gupta Wessler PLLC,
San Francisco, California; Jeffrey B. Cereghino, Ram Olson
Cereghino & Kopczynski LLP, San Francisco, California;
Christopher J. Reichman and Justin Prato, Prato & Reichman
APC, San Diego, California; for Plaintiff-Appellee.
Nicole A. Saharsky, Andrew J. Pincus, Archis A.
Parasharami, and Daniel E. Jones, Mayer Brown LLP,
Washington, D.C.; Steven P. Lehotsky and Jonathan D.
Urick, U.S. Chamber Litigation Center, Washington, D.C.;
for Amicus Curiae Chamber of Commerce of the United
States of America.

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M OSER V. BENEFYTT 5
OPINION
BRESS, Circuit Judge:
We principally consider whether a defendant waived any
objection under Bristol-Myers Squibb Co. v. Superior Court
of California, 137 S. Ct. 1773 (2017), to the district court’s
certification of nationwide classes because the defendant did
not file a motion to dismiss the claims of non-resident
putative class members for lack of personal jurisdiction.
I
Kenneth Moser filed this putative nationwide class
action in federal court in California against Benefytt
Technologies, Inc., formerly known as Health Insurance
Innovations, Inc. (“HII”), alleging that HII was responsible
for unwanted sales calls that violated the Telephone
Consumer Protection Act of 1991. See 47 U.S.C.
§ 227(b)(1)(A)–(B). Moser is a resident of California. HII
is incorporated in Delaware and represents that its principal
place of business is Florida. Moser sued other defendants
too (including appellant National Congress of Employers,
Inc.), but they are not relevant here.
The district court denied HII’s motion to dismiss and
ruled that HII’s motion to strike certain class allegations was
premature. HII did not move to dismiss Moser’s claims for
lack of personal jurisdiction. There is no dispute that the
district court had specific personal jurisdiction over Moser’s
own claims against HII, which “arise out of or relate to”
HII’s contacts with California. See, e.g., Ford Motor Co. v.
Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026 (2021)
(citation omitted).

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6 M OSER V. BENEFYTT
Subsequently, Moser asked the district court to certify
two nationwide classes under Federal Rule of Civil
Procedure 23. In response, HII argued (among other things)
that the district court could not certify classes of that scope
because the district court lacked personal jurisdiction over
the claims of non-California plaintiffs under Bristol-Myers,
137 S. Ct. 1773.
In Bristol-Myers, the Supreme Court held that the
Fourteenth Amendment’s Due Process Clause prohibited a
California state court from exercising specific personal
jurisdiction over nonresident plaintiffs’ claims in a mass
action against a non-resident company. Id. at 1781. That
some plaintiffs were injured in California, the Supreme
Court held, “does not allow the State to assert specific
jurisdiction over the nonresidents’ claims,” “even when third
parties (here, the plaintiffs who reside in California) can
bring claims similar to those brought by the nonresidents.”
Id. Bristol-Myers did not address whether its approach
would apply to a class action in federal court. See id. at 1789
n.4 (Sotomayor, J., dissenting). But in opposing class
certification, HII argued that it did.
The district court did not address HII’s Bristol-Myers
argument on the merits. Instead, it concluded that under
Federal Rule of Civil Procedure 12(h)(1), HII had waived its
personal jurisdiction defense by not raising it at the motion
to dismiss stage, given that the Supreme Court had decided
Bristol-Myers approximately one month before HII filed its
Rule 12 motion. After finding that Rule 23’s requirements
were otherwise met, the district court certified two
nationwide classes. We then granted HII leave to appeal the
class certification order. See 28 U.S.C. § 1292(e); Fed. R.
Civ. P. 23(f).

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M OSER V. BENEFYTT 7
II
A
Although the parties’ sophisticated class action counsel
all agree we have jurisdiction over the Bristol-Myers-related
issues, we have an independent obligation to confirm this.
Snodgrass v. Provident Life & Acc. Ins. Co., 147 F.3d 1163,
1165 (9th Cir. 1998). We conclude we have jurisdiction
under Rule 23(f) to review the personal jurisdiction and
waiver issues that form part of the district court’s class
certification decision.
Rule 23(f) provides that “[a] court of appeals may permit
an appeal from an order granting or denying class-action
certification under this rule.” In this case, HII maintained
that nationwide classes could not be certified because the
district court lacked personal jurisdiction over the claims of
non-California class members. The personal jurisdiction
and waiver questions thus go directly to the scope of the
classes that the district court certified. And they were part
of the district court’s class certification order, which we
granted HII leave to appeal. See 16 Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3931.1 (3d ed. Apr. 2021 Update) (explaining
that “[a]nything that properly enters the determination
whether to certify a class is bound up with the order,” which
a court of appeals may then review under Rule 23(f)).
We can break this down further and the result is the
same. If the district court lacked personal jurisdiction over
non-California plaintiffs, that presents obvious reasons why,
under the Rule 23 requirements, certification of a nationwide
class would be improper. For example, if the district court
could not even entertain claims from non-California class
members and grant them relief, for a nationwide class

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8 M OSER V. BENEFYTT
common questions would not “predominate over any
questions affecting only individual members,” and Moser’s
claims would not be “typical of the claims or defenses of the
class.” Fed. R. Civ. P. 23(a)(3), (b)(3). The personal
jurisdiction and waiver questions are thus not ancillary to
class certification, but central to the nationwide classes that
the district court certified and, again, part of the very class
certification decision we permitted HII to appeal.
Our conclusion as to the scope of our review is consistent
with that of the Fifth and Seventh Circuits, which both
reviewed personal jurisdiction questions under Bristol-
Myers as part of Rule 23(f) appeals. See Cruson v. Jackson
Nat’l Life Ins. Co., 954 F.3d 240, 248–49 & n.7 (5th Cir.
2020) (reviewing as part of a Rule 23(f) appeal an analogous
waiver ruling and noting that the court could have also
reviewed whether Bristol-Myers applied to class actions in
federal court); Mussat v. IQVIA, Inc., 953 F.3d 441, 443–44
(7th Cir. 2020) (reviewing under Rule 23(f) a district court
order striking nationwide class allegations under Bristol-
Myers).
The Supreme Court’s recent decision in BP P.L.C. v.
Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021),
also supports our ability to review the personal jurisdiction
issues that are part and parcel of the district court’s class
certification order. In BP, the Supreme Court considered the
scope of appealable issues under 28 U.S.C. § 1447(d), which
provides that “an order remanding a case to the State court
from which it was removed pursuant to section 1442 or 1443
of this title shall be reviewable by appeal.” BP held that this
provision gave the court of appeals jurisdiction to review all
the defendant’s grounds for removal and not just those made
under sections 1442 or 1443. 141 S. Ct. at 1537–40.

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M OSER V. BENEFYTT 9
BP explained that, like interlocutory appeals under
28 U.S.C. § 1292(b), “‘[b]ecause it is the . . . order that is
appealable,’ a court of appeals ‘may address any issue fairly
included within’ it.” Id. at 1540 (quoting Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996)
(alterations omitted)). That reasoning tracks our conclusion
that when reviewing the class certification “order” under
Rule 23(f), we have jurisdiction to review the district court’s
resolution of the Bristol-Myers issue, which formed part of
the class certification decision and affected whether
nationwide classes could be certified.
The dissent’s contrary analysis turns on an apparent
misunderstanding of how the personal jurisdiction issues
bear on, and form part of, the district court’s class
certification decision. The dissent notes that “denials of
motions to dismiss for lack of personal jurisdiction are not
ordinarily reviewable on interlocutory appeal,” and then
proceeds to assert that we lack jurisdiction to address “the
resolution” of HII’s supposedly “separate Rule 12 motion,”
which the dissent alternatively describes as “the district
court’s personal jurisdiction order under Rule 12(b)(2).”
The problem with the dissent’s analysis is that there was
no Rule 12 motion to dismiss non-resident class members
for lack of personal jurisdiction, nor did the district court
resolve such a motion. HII’s argument is that under Bristol-
Myers, the district court could not certify nationwide classes
consistent with Rule 23. The dissent says Rule 23(f)
“appeals are limited to those issues that bear on the
soundness of the class certification decision.” (quotations
omitted). That test is clearly met here.
Cases such as Poulos v. Caesars World, Inc., 379 F.3d
654 (9th Cir. 2004), are thus entirely inapposite. In Poulos,
the district court denied class certification and we granted

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10 M OSER V. BENEFYTT
the plaintiffs permission to appeal that order under Rule
23(f). Id. at 659. The defendants then claimed that under
the doctrine of “pendent appellate jurisdiction,” we could
also review as part of the Rule 23(f) appeal an earlier district
court order—issued years before the class certification
decision—denying certain defendants’ motion to dismiss for
lack of personal jurisdiction. Id. at 658–59, 671–72. We
held that we could not review the denial of the motion to
dismiss because it was not “inextricably intertwined” with
the later class certification decision. Id. at 672. (The Tenth
Circuit’s decision in CGC Holding Co. v. Broad & Cassel,
773 F.3d 1076, 1098–99 (10th Cir. 2014), also involved the
issue of pendent appellate jurisdiction in analogous
circumstances.)
Quite plainly, the doctrine of “pendent appellate
jurisdiction” does not come into play here because we are
not being asked to review anything “pendent” to the class
certification decision, but simply the class certification
decision itself. The dissent claims that “the district court’s
denial of the motion to dismiss did not functionally grant
class certification.” But again, we are not reviewing the
denial of a motion to dismiss or a “functional” grant of class
certification. Over HII’s Bristol-Myers objection, the
district court did certify two nationwide classes, which we
then permitted HII leave to appeal.
We thus decline the dissent’s invitation to create an
unprecedented limitation on our jurisdiction under Rule
23(f), which would also create a split with both the Fifth
Circuit (Cruson) and the Seventh Circuit (Mussat).1 We
1 Contrary to the dissent’s suggestion, the D.C. Circuit in Molock v.
Whole Foods Market Group, 952 F.3d 293 (D.C. Cir. 2020), did not
reach a different conclusion on the scope of Rule 23(f) appeals. Indeed,

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M OSER V. BENEFYTT 11
therefore proceed to the district court’s determination that
defendants waived any Bristol-Myers-based objection to
class certification.
B
We hold 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
stage. Federal Rule of Civil Procedure 12(b)(2) allows a
defendant to move to dismiss for lack of personal
jurisdiction. As relevant here, under Rule 12(h)(1)(A) a
party “waives any defense” under Rule 12(b)(2) by
“omitting it from a motion in the circumstances described in
Rule 12(g)(2).” Rule 12(g)(2), in turn, provides that “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.”
(emphasis added).
The question here is whether, at the motion to dismiss
stage, it was an “available” Rule 12(b) defense that the
district court lacked personal jurisdiction over unnamed,
non-resident putative class members. The answer is no. We
have explained that “[t]he essence” of Rule 12(g) and 12(h)
is that “a party ‘who by motion invites the court to pass upon
a threshold defense should bring forward all the specified
defenses [personal jurisdiction, improper venue, insufficient
process, or insufficient service] he then has and thus allow
the court to do a reasonably complete job.’” Am. Ass’n of
Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107
(9th Cir. 2000), as amended on denial of reh’g (Nov. 1,
Molock was not a Rule 23(f) appeal at all. See id. at 295 (noting the court
had jurisdiction under 28 U.S.C. 1292(b)).

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12 M OSER V. BENEFYTT
2000) (quoting Fed. R. Civ. P. 12 advisory committee’s note,
1966 Amendment, subdivision (h)). We have also explained
that “a class action, when filed, includes only the claims of
the named plaintiff.” Gibson v. Chrysler Corp., 261 F.3d
927, 940 (9th Cir. 2001).
Putting these points together shows that HII did not have
“available” a Rule 12(b)(2) personal jurisdiction defense to
the claims of unnamed putative class members who were not
yet parties to the case. To conclude otherwise would be to
endorse “the novel and surely erroneous argument that a
nonnamed class member is a party to the class-action
litigation before the class is certified.” Smith v. Bayer Corp.,
564 U.S. 299, 313 (2011) (quoting Devlin v. Scardelletti,
536 U.S. 1, 16 n.1 (2002) (Scalia, J., dissenting)); see also
A. Benjamin Spencer, Out of the Quandary: Personal
Jurisdiction Over Absent Class Member Claims Explained,
39 Rev. Litig. 31, 38 (2019) (“No Supreme Court case
regards absent class members as parties joined in the action
filed by a putative class representative. . . . It necessarily
follows that when determining whether there is personal
jurisdiction over the defendant with respect to claims
asserted by the named plaintiffs in a putative class action, the
only claims to be assessed by the court are those of the class
representatives.”); id. at 49 (“[A] defendant’s failure to seek
the dismissal of the claims of absent members of a putative
class in conformity with the consolidation and forfeiture
principles imposed by Rule 12(h) will not constitute a waiver
of the personal jurisdiction defense for those claims.”). HII
could not have moved to dismiss on personal jurisdiction
grounds the claims of putative class members who were not
then before the court, nor was HII required to seek dismissal
of hypothetical future plaintiffs.

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M OSER V. BENEFYTT 13
The Fifth and D.C. Circuits agree. In Cruson, the district
court likewise concluded that a defendant waived the right
to bring a Bristol-Myers-based personal jurisdiction
challenge to the claims of unnamed non-resident class
members because the defendant did not raise this challenge
in its motion to dismiss. 954 F.3d at 248. The Fifth Circuit
held that this was error. Id. at 249–51.
As the Fifth Circuit explained, “[a] defense is not
‘available’ under Rule 12(g)(2)” if “its legal basis did not
then exist” or “if the defense would have been futile.” Id. at
250 (quotations and alterations omitted). Because putative
class members are not before the court at the Rule 12 stage,
“at that time, a personal jurisdiction objection respecting
merely putative class members was not ‘available.’” Id. As
a result, “[a]lthough Bristol-Myers provided new legal
support for [the defendant’s] objection, the Supreme Court’s
decision did not make the objection ‘available.’
Certification did.” Id. at 251.
The D.C. Circuit reasoned similarly in Molock v. Whole
Foods Market Group, 952 F.3d 293 (D.C. Cir. 2020), which
also involved a Bristol-Myers-based challenge to non-
resident class members. In Molock, the district court denied
a defendant’s motion to dismiss non-resident putative class
members under Bristol-Myers and then certified its order for
interlocutory appeal. Id. at 295.
The D.C. Circuit did not reach whether Bristol-Myers
applied to class actions, instead concluding that the
defendant’s motion to dismiss should have been denied as
premature. Id. at 296. That was because putative class
members “are always treated as nonparties” and “become
parties to an action—and thus subject to dismissal—only
after class certification.” Id. at 297–98; see also id. at 298
(“It is class certification that brings unnamed class members

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14 M OSER V. BENEFYTT
into the action and triggers due process limitations on a
court’s exercise of personal jurisdiction over their claims.”).
“Motions to dismiss nonparties for lack of personal
jurisdiction,” the D.C. Circuit held, “are thus premature.” Id.
And if such a motion was premature, it was not “available”
to HII at the motion to dismiss stage.
Moser responds that HII had to raise its personal
jurisdiction defense because it had “reasonable notice” of a
Bristol-Myers-based objection when it moved to dismiss.
Essentially, Moser argues that the Federal Rules required
HII to raise this defense in its motion to dismiss even if the
district court could not address the objection at that time.
But we have never held that a defendant must raise such
premature objections in a Rule 12 motion. Here, there were
no claims the district court could have dismissed on personal
jurisdiction grounds when it decided HII’s motion to dismiss
because Moser was the only plaintiff and there was specific
personal jurisdiction over his claims against HII.2
2 While HII could have moved to strike Moser’s class allegations
under Rule 12(f) or Rule 23 based on Moser seeking to represent non-
California residents, HII did not have to do so (and the district court
denied HII’s motion to strike as premature anyway).
For its part, the dissent maintains that “a personal jurisdiction
challenge like HII’s can only be raised by motion under Rule 12.”
(emphasis in original) (quotations and alterations omitted). That is
incorrect. As we have explained, and as the dissent seemingly agrees,
HII could not have moved to dismiss putative class members at the outset
of this case because they were not then parties. By the logic of the
dissenting opinion, however, the district court could not even consider in
the Rule 23 analysis whether it would lack personal jurisdiction over (by
HII’s argument) almost everyone in the putative nationwide class.
Instead, the district court would be required artificially to ignore that
issue, certify a nationwide class (if otherwise proper), and only then

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M OSER V. BENEFYTT 15
Because it found the issue waived, the district court did
not address the merits of HII’s Bristol-Myers objection to
class certification. Although HII asks us to resolve that issue
now, like the Fifth Circuit in Cruson, we leave that matter
for the district court on remand. See Cruson, 954 F.3d at 249
n.7. This case involves allegations that HII was responsible
for a network of agents that made unlawful telephone calls
to persons across the country. The district court can
determine in the first instance whether consideration of the
Bristol-Myers argument will require additional record
development, including as to HII’s and its alleged agents’
contacts with California. And because the permissible scope
of the certified class (and record) may change, we do not
reach HII’s other arguments on why class certification under
Rule 23 was otherwise improper.
* * *
We vacate the class certification order and remand this
case to the district court for proceedings consistent with this
decision.
VACATED AND REMANDED.
receive from HII the inevitable Rule 12 motion to dismiss the claims of
nearly every plaintiff in the class just certified. “[P]ersonal jurisdiction
entails a court’s power over the parties before it.” Molock, 952 F.3d
at 298 (quotations omitted). Nothing in the Federal Rules somehow
requires a district court to assert its power over the claims of putative
class members in the face of a class action defendant’s personal
jurisdiction objection to class certification. And nothing in the Federal
Rules prevents that objection to a plaintiff’s request for class
certification from being interposed at the Rule 23 stage, as part of Rule
23 proceedings, as HII sought to do here.

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16 M OSER V. BENEFYTT
CARDONE, District Judge, dissenting:
For the first time, a panel of this Court holds that Federal
Rule of Civil Procedure 23(f) confers appellate jurisdiction
over an exercise of personal jurisdiction. Because I believe
that holding is contrary to law, I respectfully dissent.
“[D]enials of motions to dismiss for lack of personal
jurisdiction are not ordinarily reviewable on interlocutory
appeal.” al-Kidd v. Ashcroft, 580 F.3d 949, 957 (9th Cir.
2009), rev’d on other grounds, 563 U.S. 731 (2011). As this
Court has explained, “federal courts of appeals are courts of
limited jurisdiction, and Congress has not seen fit to give this
court the general power to review district courts’ exercise of
personal jurisdiction before a final judgment.” Id. at 980.
Rule 23(f) is no exception to that rule. Rather, “the only
question properly before us [under Rule 23(f) is] whether the
district court’s [resolution] of the . . . motion for class
certification was an abuse of discretion.” See Stockwell v.
City & Cty. of San Francisco, 749 F.3d 1107, 1113 (9th Cir.
2014). Thus, “[i]n a Rule 23(f) appeal, an appellate court
must limit its review to whether the district court correctly
selected and applied Rule 23’s criteria.” In re Wells Fargo
Home Mortg. Overtime Pay Litig., 571 F.3d 953, 956–57
(9th Cir. 2009) (cleaned up) (quoting Parra v. Bashas’, Inc.,
536 F.3d 975, 977 (9th Cir. 2008)).1
1 See also Alcantar v. Hobart Serv., 800 F.3d 1047, 1053 (9th Cir.
2015) (“In determining the propriety of a class action, the question is not
whether the plaintiff or plaintiffs have stated a cause of action or will
prevail on the merits, but rather whether the requirements of Rule 23 are
met.” (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178
(1974))); Stockwell, 749 F.3d at 1113 (“As the exception to the final
judgment rule created by Rule 23(f) applies only to class certification

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M OSER V. BENEFYTT 17
Personal jurisdiction over putative class members is not
one of those criteria. See Poulos v. Caesars World, Inc.,
379 F.3d 654, 670 (9th Cir. 2004) (“Class certification
hinges on the well known factors from Rule 23—namely,
whether there is numerosity, typicality, commonality,
adequacy of representation, predominance, and
superiority.”). Nor does the resolution of that separate Rule
12 motion have any bearing on whether the district court
correctly granted a Rule 23 motion for class certification.
See id. at 672 (“[T]he personal jurisdiction issue and class
certification decision involve the application of different
standards,” and “are only tangentially related.”); see also
CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076,
1098–99 (10th Cir. 2014) (“Quite clearly, the question [of
personal jurisdiction] is beyond the scope of a traditional
Rule 23(f) review . . . .”). In short, the district court’s
personal jurisdiction order under Rule 12(b)(2) was not “an
order granting or denying class-action certification under
[Rule 23].” See Fed. R. Civ. P. 23(f).
Thus, I would hold that we lack jurisdiction to review
that order.
decisions, merits inquiries unrelated to certification exceed our limited
Rule 23(f) jurisdiction, as well as the needs of Rule 23(a)–(b).”); In re
Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 106 (D.C. Cir.
2002) (“Rule 23(f) interlocutory review is limited to . . . . whether the
proposed class satisfies the prerequisites of Rule 23.”); 2 McLaughlin on
Class Actions § 7:1 (17th ed. Oct. 2020 Update) (“The Advisory
Committee Note also clarifies that ‘[n]o other type of Rule 23 order is
covered by this provision,’ so that rulings that may affect class
proceedings but do not actually grant or deny certification ordinarily
cannot be reviewed as part of a Rule 23(f) appeal unless they touch
directly upon the suitability of a case for class treatment.”); id. § 7:1 n.65
(listing cases).

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18 M OSER V. BENEFYTT
The majority cites no Ninth Circuit authority to support
its assertions otherwise. It suggests, for example, “that there
was no Rule 12 motion to dismiss non-resident class
members for lack of personal jurisdiction, nor did the district
court resolve such a motion.” But a personal jurisdiction
challenge like HII’s can only be raised “by motion under
[Rule 12].” See Fed. R. Civ. P. 12(h)(1)(B). As the district
court correctly observed, such challenges “are expressly
waived unless a defendant timely asserts the defense in a
motion to dismiss or in a responsive pleading.” (citing, inter
alia, Fed. R. Civ. P. 12(h)(1)). That is why the district court
treated HII’s personal jurisdiction objection as a “threshold
matter” under Rule 12, rather than analyzing it under Rule
23. And it is likely why HII raised it in the facts section of
its opposition to class certification, rather than in its analysis
of the “quintessential elements for certifying a class action.”
But the majority’s own analysis is perhaps most telling: if
there was no Rule 12 motion, its discussion of availability
under Rule 12(g)(2)—which applies only to Rule 12
motions—would be superfluous. See Fed. R. Civ. P.
12(g)(2) (providing that “a party that makes a motion under
[Rule 12] must not make another motion under this rule
raising a defense or objection that was available” (emphasis
added)).2
2 The majority also attempts to recast HII’s Rule 12(b)(2) challenge
as a Rule 23 challenge to predominance and typicality. But the parties’
“sophisticated class action counsel” never raised that argument, and the
district court never considered it. Because it was “not developed in the
opening brief or the court below,” it is waived. See Webb v. Trader Joe's
Co., 999 F.3d 1196, 1204 n.5 (9th Cir. 2021) (citing Lopez v. Pac. Mar.
Ass’n, 657 F.3d 762, 766–67 (9th Cir. 2011)); see also Nuelsen v.
Sorensen, 293 F.2d 454, 462 (9th Cir. 1961) (observing “general rule that
an appellate court will not consider sua sponte arguments not presented
or urged by the litigants”). And even if it was not waived, the majority

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M OSER V. BENEFYTT 19
The majority argues that HII’s personal jurisdiction
challenge went “directly to the scope of the classes that the
district court certified.” But that argument is undermined by
its holding that such a challenge was not even “available”
until after certification. As the majority points out, putative
class members “become parties to an action—and thus
subject to dismissal—only after class certification.”
(quoting Molock v. Whole Foods Market Grp., 952 F.3d 293,
298 (D.C. Cir. 2020)). That is, certification “is ‘logically
antecedent’ to whether the court has authority to exercise
personal jurisdiction over [the putative class].” Molock,
952 F.3d at 299 (quoting Amchem Products, Inc. v. Windsor,
521 U.S. 591, 612 (1997) (explaining that certification issues
were “logically antecedent to the existence of any Article III
issues”)). But if class certification thus “precedes the
question of personal jurisdiction,” id., then HII’s personal
jurisdiction challenge could not, by definition, affect the
scope of the classes certified.
It does not matter that HII argued otherwise below. See,
e.g., Nguyen v. Nissan N. Am., Inc., 932 F.3d 811, 822 n.8
(9th Cir. 2019) (refusing to review “grounds in the record”
that were not relevant to class certification, even though
defendant argued they were); see also In re Lorazepam &
Clorazepate Antitrust Litig., 289 F.3d 98, 107 (D.C. Cir.
2002) (“[Defendant’s] effort to recast its Rule 12(b)(6)
arguments as a challenge to class certification . . . is to no
avail.”). To hold differently would allow parties to “turn this
cites no cases suggesting personal jurisdiction is relevant to a Rule 23
factor, and I am aware of none. See Poulos, 379 F.3d at 672 (explaining
that personal jurisdiction and class certification “involve the application
of different standards”); see also Bell v. Brockett, 922 F.3d 502, 512 n.5
(4th Cir. 2019) (listing typicality and commonality as separate issues
from the “possible absence of personal jurisdiction of absent class
members”).

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20 M OSER V. BENEFYTT
focused interlocutory appeal of a class certification [order]
into a ‘multi-issue interlocutory appeal ticket.’” Poulos,
379 F.3d at 669 (quoting Swint v. Chambers Cty. Comm’n,
514 U.S. 35, 50 (1995)); see also CGC Holding, 773 F.3d
at 1098 (refusing to review personal jurisdiction order even
where parties stipulated to Rule 23(f) jurisdiction because
“Rule 23 does not permit a party to shoehorn every decision
that went against it into its petition for interlocutory
review”); In re Lorazepam, 289 F.3d at 107 (refusing to
review issue that might “dispose of the class as a whole,” but
that was “unrelated to the Rule 23 requirements,” because
“review of such issues would expand Rule 23(f)
interlocutory review to include review of any question raised
in a motion to dismiss that may potentially dispose of a
lawsuit as to the class as a whole”).
Nor does it matter that the district court rejected the Rule
12(b)(2) motion in the same document as the class
certification order. On interlocutory appeal, we do not have
“jurisdiction over every claim or defense addressed by the
district court’s order.” Burlington N. & Santa Fe Ry. Co. v.
Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007) (discussing
collateral order review); see also Puente Arizona v. Arpaio,
821 F.3d 1098, 1102–03, 1108–10 (9th Cir. 2016) (refusing
to review Rule 12(b)(6) ruling made in “same order” over
which court had jurisdiction). As Judge Posner has
explained, even where a ruling is “laid out in the district
court’s class certification order, Rule 23(f) appeals are
limited to those issues” that “bear on the soundness of the
class certification decision.” DeKeyser v. Thyssenkrupp
Waupaca, Inc., 860 F.3d 918, 922 (7th Cir. 2017) (cleaned
up) (refusing to review order severing and transferring sub-
classes that was contained in same document as class
certification order because it did not bear on Rule 23
requirements); see In re Visa Check/MasterMoney Antitrust

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M OSER V. BENEFYTT 21
Litig., 280 F.3d 124, 132 n.4 (2d Cir. 2001) (holding that
court lacked Rule 23(f) jurisdiction over order refusing to
strike expert report submitted in support of class
certification, even though it was contained in the same
“order” granting class certification) abrogated on other
grounds by In re Initial Pub. Offerings Sec. Litig., 471 F.3d
24 (2d Cir. 2006).
The majority’s reliance on BP is misplaced. See BP
P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct.
1532 (2021). That case concerned the scope of 28 U.S.C.
§ 1447(d), which provides for interlocutory review of “an
order remanding a case,” but does not define the bounds of
that phrase. Id. at 1537. Here, by contrast, Rule 23 defines
the bounds of an “order granting or denying class-action
certification under this rule.” Fed. R. Civ. P. 23(f)
(emphasis added). Specifically, Rule 23(c)(1) provides that
a “Certification Order” is a court’s “determin[ation] by order
whether to certify the action as a class action.” Fed. R. Civ.
P. 23(c)(1). That “determination,” in turn, “depends in each
case on satisfaction of the terms of subdivision (a) and the
relevant provisions of subdivision (b).” Advisory
Committee Notes to Rule 23, subsection (c); see also Fed. R.
Civ. P. 23(b) (“A class action may be maintained if Rule
23(a) is satisfied and if” Rule 23(b) is satisfied). That is why
this Court has held time and again that in a Rule 23(f) appeal,
the “only question properly before us [is] . . . the motion for
class certification,” see Stockwell, 749 F.3d at 1113, and that
we must therefore “limit [our] review to whether the district
court correctly selected and applied Rule 23’s criteria,” In re
Wells Fargo, 571 F.3d at 956–57. That is, Congress has
expressly limited our review in that way. BP’s abstract
interpretation of an entirely different statute that lacks
similar constraints should not apply here.

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22 M OSER V. BENEFYTT
The majority’s reliance on Mussat v. IQVIA, Inc.,
953 F.3d 441, 443–44 (7th Cir. 2020), and Cruson v.
Jackson National Life Insurance Co., 954 F.3d 240, 248–49
& n.7 (5th Cir. 2020), fares no better. Mussat turned on the
rule that “an order striking class allegation[s] is functionally
equivalent to an order denying class certification.” 953 F.3d
at 444 (quoting Microsoft v. Baker, 137 S. Ct. 1702, 1711
n.7 (2017)); see also Bates v. Bankers Life & Cas. Co.,
848 F.3d 1236, 1238 (9th Cir. 2017) (same). But that rule
does not work in reverse: denying a motion to strike class
allegations is not the “functional equivalent” of granting
class certification, and no court has ever held as much. By
the same token, the district court’s denial of the motion to
dismiss did not functionally grant class certification and is
therefore not reviewable under Mussat’s reasoning.
In Cruson, the Fifth Circuit did not expressly consider
whether it had jurisdiction over the waiver issue. This may
have been due to precedent peculiar to that circuit, see
United States ex rel. Simoneaux v. E.I. duPont de Nemours
& Co., 843 F.3d 1033, 1042 (5th Cir. 2016) (asserting
§ 1292(b) jurisdiction over issue “that was raised in the
district court and [that] the parties presented . . . in their
appellate briefs”); but see Bertulli v. Indep. Ass’n of Cont’l
Pilots, 242 F.3d 290, 294 (5th Cir. 2001) (explaining that
“under Rule 23(f), a party may appeal only the issue of class
certification; no other issues may be raised”), or simply an
oversight.
Whatever the case may be, Cruson simply cannot be
squared with the binding precedent discussed above. Nor
can it be squared with the D.C. Circuit’s holding in Molock,
which I find to be the more persuasive authority: class
certification is “logically antecedent” to, and therefore a
separate issue from, personal jurisdiction.

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M OSER V. BENEFYTT 23
To be clear, the foregoing should not be taken as
disagreement with the majority’s well-reasoned analysis of
the waiver issue. I simply do not believe that Rule 23(f)
permits us to perform that analysis here. Because we also
lack pendent jurisdiction, see Poulos, 379 F.3d at 671–72
(holding that we lacked pendent jurisdiction over a district
court’s exercise of personal jurisdiction in a Rule 23(f)
appeal), and because “the district court properly selected and
applied Rule 23’s criteria,” see In re Wells Fargo, 571 F.3d
at 956–57, I respectfully dissent.

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