                                                                              FILED
                                                                  United States Court of Appeals
                                    PUBLISH                               Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    January 20, 2016

                                                                      Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                         Clerk of Court
                        _________________________________

AMERICAN FIDELITY ASSURANCE
COMPANY,

     Plaintiff - Appellee,

v.                                                      No. 15-6009

THE BANK OF NEW YORK MELLON,

     Defendant - Appellant.
                     _________________________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. No. 5:11-CV-01284-D)
                  _________________________________

Charles A. Rothfeld, Mayer Brown, LLP, Washington, DC (Paul W. Hughes and James
F. Tierney, Mayer Brown, LLP Washington, DC; and Matthew D. Ingber and
Christopher J. Houpt, Mayer Brown, LLP, New York, New York, with him on the
briefs), appearing for Appellant.

Stuart W. Emmons (William B. Federman, on the brief), Federman & Sherwood,
Oklahoma City, Oklahoma, appearing for Appellee.
                     _________________________________

Before LUCERO, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

MATHESON, Circuit Judge.
                   _________________________________

      American Fidelity Assurance Company (“American Fidelity”) sued the Bank of

New York Mellon (“BNYM”) in the Western District of Oklahoma for claims arising
from BNYM’s conduct as Trustee of a trust holding mortgage-backed securities owned

by American Fidelity. BNYM did not assert a personal jurisdiction defense in its first

two motions to dismiss or in its answer. In its third motion to dismiss, BNYM argued it

was not subject to general jurisdiction in Oklahoma. The district court denied the motion,

concluding BNYM had waived the defense by failing to raise it in prior filings. BNYM

challenges that decision in an interlocutory appeal. Exercising jurisdiction under 28

U.S.C. § 1292(b), we affirm.

                                  I. BACKGROUND

                                  A. Factual History

       Countrywide Financial Corporation and related entities (“Countrywide”) sold

mortgage-backed securities (“Certificates”). BNYM, a commercial bank and securities

services company, is chartered under New York law and its principal place of business is

New York. Through Pooling and Service Agreements between Countrywide and

BNYM, Countrywide created trusts to hold the Certificates for the benefit of the

Certificate holders and appointed BNYM to administer the trusts as Trustee.

       American Fidelity, an insurance company, purchased Certificates from

Countrywide. BNYM was therefore Trustee of the trusts holding American Fidelity’s

securities.

                                B. Procedural History

       American Fidelity sued BNYM, invoking diversity jurisdiction and alleging that

BNYM breached contractual and fiduciary duties as Trustee.




                                            -2-
       In April 2012, BNYM moved to dismiss American Fidelity’s complaint for failure

to state a claim. The district court granted BNYM’s motion, and American Fidelity filed

an amended complaint. Shortly thereafter, American Fidelity filed a second amended

complaint, which is the operative complaint for this appeal.

       In May 2013, BNYM moved to dismiss American Fidelity’s second amended

complaint, arguing American Fidelity again failed to state a claim. The district court

denied the motion. BNYM did not assert a personal jurisdiction defense in either of its

pre-answer motions to dismiss.

       In January 2014, BNYM answered American Fidelity’s second amended

complaint, and again did not assert a personal jurisdiction defense. Four days later, the

Supreme Court decided Daimler AG v. Bauman, 134 S. Ct. 746 (2014).

       The parties filed a joint status report and discovery plan in which BNYM stated it

“may move to dismiss the case in light of recent Supreme Court decisions that limit the

permissible scope of personal jurisdiction under the U.S. Constitution.” App. at 44.

       In March 2014, BNYM filed a third motion to dismiss, arguing for the first time

that the court lacked personal jurisdiction over BNYM. BNYM contended the court

lacked general jurisdiction based on Daimler, and also lacked specific jurisdiction

because American Fidelity failed to allege sufficient contacts between BNYM and

Oklahoma. Before the court ruled on the motion, the parties stipulated to the following

jurisdictional facts:

       a.      BNYM has conducted corporate trust business or services for clients
       that are located in the State of Oklahoma;



                                             -3-
      b.      BNYM has conducted commercial indenture trust business for
      clients that are located in the State of Oklahoma;

      c.   BNYM has provided investment services for trusts, insurance
      companies, and/or banks that are located in the State of Oklahoma;

      d.      BNYM has provided commercial broker-dealer services for clients
      that are located in the State of Oklahoma;

      e.    BNYM has solicited business from municipal or state governmental
      organizations that are located in the State of Oklahoma; and

      f.    BNYM has provided investment services for municipal or state
      governmental organizations that are located in the State of Oklahoma.

App. at 51-52.

      The district court denied the motion, concluding BNYM had waived any general

jurisdiction defense under Federal Rule of Civil Procedure 12(h). It explained that

Daimler applied the standard previously articulated in Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). BNYM was therefore not

presenting a new defense that had been unavailable when it previously moved to dismiss

American Fidelity’s original and second amended complaints and when it filed its

answer. The court did not address BNYM’s arguments about specific jurisdiction

because BNYM had waived its general jurisdiction defense, thereby allowing the court to

exercise personal jurisdiction over BNYM.

      BNYM now seeks interlocutory review of the district court’s decision.

                          II. APPELLATE JURISDICTION

      Although BNYM appeals the district court’s denial of its motion to dismiss—

which typically is a non-final order—we have jurisdiction under the “two-tiered



                                            -4-
arrangement,” Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 47 (1995), described in 28

U.S.C. § 1292(b).

       The district court denied BNYM’s third motion to dismiss on September 10, 2014,

and certified that order for interlocutory appeal under 28 U.S.C. § 1292(b) on December

12, 2014. On December 22, 2014, BNYM timely requested approval from the Tenth

Circuit to file an interlocutory appeal under § 1292(b). See id. (authorizing court of

appeals to hear interlocutory appeals certified by a district court if “application is made to

[the circuit court] within ten days after the entry of the [certification] order”). The Tenth

Circuit granted BNYM’s application. We therefore have jurisdiction under 28 U.S.C.

§ 1292(b).

                                     III. DISCUSSION

       BNYM argues its general jurisdiction defense was not available before Daimler

was decided but was available afterwards because Daimler narrowed the basis for general

jurisdiction. We disagree. BNYM’s general jurisdiction defense was available when it

first responded to American Fidelity’s original and second amended complaints and when

it filed its answer. By “available” we mean the standard it relies upon would have been

the same if it had relied on it earlier. Put another way, the general jurisdiction standard

BNYM asserts was the same before and after Daimler was decided, and it was therefore

available to BNYM from the outset of the litigation.1

       1
       The district court did not decide, nor do we, whether the state courts in
Oklahoma may exercise general jurisdiction over BNYM. We address only whether
BNYM has waived its opportunity to contest general jurisdiction in this case.



                                              -5-
       Federal Rule of Civil Procedure 12(h)(1) provides that a party waives the defenses

listed in Rule 12(b)(2)-(5), including lack of personal jurisdiction, Rule 12(b)(2), by

failing to assert them in a responsive pleading or an earlier motion. Rule 12(g)(2) limits

the waiver rule to defenses that were “available to the party but omitted from its earlier

motion.” BNYM waived its personal jurisdiction defense if it was available when it

moved to dismiss American Fidelity’s original and second amended complaints and when

it filed its answer.

       Whether a party has waived a personal jurisdiction defense is a mixed question of

law and fact. FDIC v. Oaklawn Apts., 959 F.2d 170, 173 (10th Cir. 1992). We review

the district court’s legal conclusions de novo. Id. Although we typically review the

district court’s factual findings for clear error, id., the parties do not contest any facts on

appeal.

       Our discussion proceeds as follows. First, we explain the concept of general

jurisdiction. Second, we identify the standard for general jurisdiction developed and

applied in the Supreme Court and the Tenth Circuit before Daimler was decided. Third,

we discuss the Daimler decision. Finally, we show that the general jurisdiction defense

that BNYM raised and the district court rejected as waived was available to BNYM when

it moved to dismiss American Fidelity’s original and second amended complaints and

when it filed its answer. As a result, we agree with the district court that BNYM waived

its general jurisdiction defense, and we affirm dismissal of this case.




                                               -6-
                                A. General Jurisdiction

       Under the Fourteenth Amendment, “a State may authorize its courts to exercise

personal jurisdiction over an out-of-state defendant if the defendant has ‘certain

minimum contacts with the State such that the maintenance of the suit does not offend

traditional notions of fair play and substantial justice.’” Goodyear, 131 S. Ct. at 2853

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (brackets omitted).

Two personal jurisdiction categories emerged from this standard: general jurisdiction

and specific jurisdiction. See OMI Holdings, Inc. v. Royal Ins. Co. of Can., 149 F.3d

1086, 1090-91 (10th Cir. 1998).

       A court exercises general jurisdiction when it asserts personal jurisdiction “over a

defendant in a suit not arising out of or related to the defendant’s contacts with the

forum.” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9

(1984) (emphasis added). “Where a court has general jurisdiction over a defendant, that

defendant may be called into that court to answer for any alleged wrong, committed in

any place, no matter how unrelated to the defendant’s contacts with the forum.” Abelesz

v. OTP Bank, 692 F.3d 638, 654 (7th Cir. 2012) (quotations omitted).

                               B. Pre-Daimler Precedent

1. The Supreme Court and the Goodyear standard

       In Goodyear, the Supreme Court explained, “[a] court may assert general

jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all

claims against them when their affiliations with the State are so continuous and

systematic as to render them essentially at home in the forum State.” 131 S. Ct. at 2851


                                              -7-
(quotations omitted). The Goodyear standard was not new; it summarized a long-

standing jurisdictional rule. See, e.g., Int’l Shoe, 326 U.S. at 318 (“[T]here have been

instances in which the continuous corporate operations within a state were thought so

substantial and of such a nature as to justify suit against it on causes of action arising

from dealings entirely distinct from those activities.”). Before Goodyear, the Supreme

Court applied the general jurisdiction standard in two cases, finding a proper exercise of

general jurisdiction in one and an improper exercise in the other.

       First, in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952), the

Supreme Court held an Ohio state court could properly exercise general jurisdiction over

Benguet, a mining company incorporated in the Philippines. Id. at 438, 446. Benguet

owned and operated mining properties in the Philippines and owned no mining properties

in Ohio. Id. at 447-48. Mining operations ceased during the Japanese occupation of the

Philippines. Id. at 447.

       During that time, Benguet’s president—who was also the company’s general

manager and principal stockholder—temporarily moved to Ohio. Id. at 447. He

maintained an office in Ohio, where he stored company files and conducted company

business. Id. at 447-48. He corresponded about company business—including

supervising the rehabilitation of the company’s properties in the Philippines—and drew

and distributed salary checks from the office. Id. at 448. He used two Ohio-based bank

accounts for company funds and an Ohio bank as the transfer agent for company stock.

Id. He also held several directors’ meetings at his home or office in Ohio. Id. In short,

the president supervised and managed Benguet from Ohio during the wartime occupation


                                              -8-
of the company’s properties. Id. The Court concluded these activities were sufficient to

allow an Ohio court to assert general jurisdiction over the corporation without violating

due process. Id.

       Second, in Helicopteros, the Supreme Court held a foreign corporation’s activities

in Texas were insufficient to allow Texas state courts to exercise general jurisdiction over

the corporation. Helicopteros, 466 U.S. at 418-19. Helicopteros was a Colombian

corporation with its principal place of business in Bogotá. It provided helicopter

transportation for oil and construction companies in South America. Id. at 409. One of

its helicopters crashed in Peru, killing four passengers who were employed by a Texas-

based oil consortium involved in a Peruvian pipeline. Id. at 409-10. The decedents’

survivors and representatives attempted to sue the Colombian corporation in Texas state

court. Id. at 410, 412.

       Helicopteros had no place of business in Texas and had never been licensed to do

business in Texas. Id. at 416. Its CEO once flew to Texas for contract negotiations with

the consortium. Id. at 410. But the contract was ultimately formalized in Peru, was

written in Spanish on official Peruvian government stationery, indicated that all relevant

parties would reside in Peru, provided that controversies arising from the contract would

be submitted to Peruvian courts, and stipulated that payments under the contract would be

made through Bank of America in New York City. Id. at 410-11.

       Helicopteros did have some contacts with the forum. It purchased $4 million

worth of helicopters and helicopter parts from a Texas supplier, sent prospective pilots to

Texas for training and to retrieve the helicopters, and sent management and maintenance


                                             -9-
personnel to Texas for training and consultation. Id. at 411. Finally, it received $5

million in payments from the consortium drawn on a Texas bank. Id.

       The Supreme Court considered each of Helicopteros’s contacts with the forum

state and concluded they were each too isolated and inconsequential to allow a Texas

court to exercise general jurisdiction over the corporation. Id. at 415-18 & n.12.

                                        * * * *

       Against this backdrop, Goodyear held a North Carolina court could not exercise

general jurisdiction over corporate defendants whose connections with the forum were

based solely on their products reaching North Carolina through the stream of commerce.

131 S. Ct. at 2851. The defendants were “indirect subsidiaries” of Goodyear USA (an

Ohio corporation) and were not registered to do business in North Carolina. Id. at 2852.

They had no place of business, employees, or bank accounts in the state. Id. They did

not solicit business or directly ship products there. Id. The defendants’ products reached

North Carolina only indirectly through Goodyear USA’s distribution process—the

products were custom ordered by other Goodyear USA affiliates who distributed them in

North Carolina. Id. The Court concluded that general jurisdiction was not proper based

solely on the defendants’ products being distributed to the forum state through the stream

of commerce. Id. at 2856.

       As noted above, Goodyear explained general jurisdiction is proper if a corporate

defendant’s “affiliations with the State are so continuous and systematic as to render [it]

essentially at home in the forum State.” Id. at 2851 (quotations omitted).




                                            - 10 -
2. The Tenth Circuit

       The Tenth Circuit has addressed general jurisdiction in several cases, but BNYM

focuses its arguments on Grynberg v. Ivanhoe Energy, Inc., 490 F. App’x 86 (10th Cir.

2012) (unpublished), and Monge v. RG-Petro Machinery (Grp.) Co., 701 F.3d 598 (10th

Cir. 2012).

       In Grynberg, the Tenth Circuit considered whether the corporate defendant’s

CEO—who was also an individually named defendant in the case—was subject to

general jurisdiction in Colorado because he had been a litigant in Colorado courts on

numerous occasions. 490 F. App’x at 93. The court first contrasted the facts in

Grynberg with those supporting general jurisdiction in Perkins. Id. at 95. It also

concluded the individually named defendant’s litigation activities did not qualify as

jurisdictional contacts. Id. at 95-96. Consistent with Goodyear and yet-to-be-decided

Daimler, the Grynberg court concluded the CEO defendant did not have continuous and

systematic business contacts with Colorado, id. at 96, and did not, therefore, have to

decide whether the contacts rendered him effectively at home there.

       In Monge, the Tenth Circuit concluded the district court could not exercise general

jurisdiction over a Chinese corporate defendant based on its contacts with Oklahoma.

701 F.3d at 602, 620. The defendant did not have a physical presence in Oklahoma. Id.

at 620. It had sent a few emails to a business in Oklahoma, made a small number of sales

to a single business there, and its representatives once visited the state for a few hours.

Id. The court concluded these contacts with the forum were not “so continuous and




                                             - 11 -
systematic as to render [it] essentially at home in the forum State.” Id. (quoting

Goodyear, 131 S. Ct. at 2851).

                                       C. Daimler

       In 2014, the Supreme Court held in Daimler that a federal court in California did

not have general jurisdiction over Daimler, a German corporation. 134 S. Ct. at 751.

Daimler had an Argentine subsidiary, MB Argentina. Id. Daimler also had a separate

subsidiary, DaimlerChrysler North America Holding Corporation, which had its own

subsidiary, Mercedes-Benz USA, LLC (“MBUSA”). Id. at 752 & n.3. MBUSA was

incorporated in Delaware, and its principal place of business was in New Jersey. Id. at

752. It had facilities in California, including a regional office, a vehicle preparation

facility, and the Mercedes Benz Classic Center.2 Id. Plaintiffs sued Daimler in federal

court in California and asserted claims arising from MB Argentina’s activities in

Argentina. Id. at 751. Plaintiffs asserted Daimler was subject to general jurisdiction in

California based on MBUSA’s contacts with the state. Id.

       The Court assumed for purposes of its decision that MBUSA was “at home” in

California, id. at 758, but nonetheless concluded Daimler was not, even if MBUSA’s

California contacts were imputed to Daimler, id. at 760. The Court, invoking Goodyear,

said: “the inquiry under Goodyear is not whether a foreign corporation’s in-forum


       2
        The Classic Center is a facility offering a variety of services for enthusiasts,
including workshops, parts, sales, and an events hall. See Mercedes-Benz, Classic
Center, http://www.mbusa.com/mercedes/enthusiast/classic_center (last accessed Dec.
16, 2015).



                                             - 12 -
contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that

corporation’s ‘affiliations with the State are so continuous and systematic as to render it

essentially at home in the forum state.’” Id. at 761 (quoting Goodyear, 131 S. Ct. at

2851) (brackets omitted). The Court’s application of the Goodyear “at home” standard

was brief:

       Here, neither Daimler nor MBUSA is incorporated in California, nor does
       either entity have its principal place of business there. If Daimler’s
       California activities sufficed to allow adjudication of this Argentina-rooted
       case in California, the same global reach would presumably be available in
       every other State in which MBUSA’s sales are sizable. Such exorbitant
       exercises of all-purpose jurisdiction would scarcely permit out-of-state
       defendants “to structure their primary conduct with some minimum
       assurances as to where that conduct will and will not render them liable to
       suit.”

Id. at 761-62 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)).

       The Court, explaining Goodyear, stated that “[g]eneral jurisdiction . . . calls for an

appraisal of a corporation’s activities in their entirety, nationwide and worldwide. A

corporation that operates in many places can scarcely be deemed at home in all of them.”

Id. at 762 n.20. Consequently, when determining where a corporation can be deemed “at

home” when it has significant contacts in many fora, Daimler suggested the place of

incorporation and principal place of business are particularly, though not solely,

important.

                 D. BNYM Waived its Personal Jurisdiction Defense

       BNYM argues that it is not subject to general jurisdiction in Oklahoma “[b]ecause

Oklahoma is not BNYM’s place of incorporation or principal place of business—and

because there are no ‘exceptional’ circumstances that would warrant a departure from the


                                             - 13 -
governing rule.” Aplt. Br. at 10. Not only was this argument available to BNYM when it

moved to dismiss and filed its answer, it misreads and truncates both Daimler and Tenth

Circuit precedent.

1. Waiver and Daimler

       BNYM argues Daimler limited general jurisdiction to a corporation’s state of

incorporation or principal place of business, except in exceptional circumstances not

present in this case. Id. at 12-21. Daimler, like Goodyear, did not limit general

jurisdiction in this manner. Moreover, Daimler rejected BNYM’s notion, id. at 14, that

Goodyear required only that “a corporation engages in a substantial, continuous, and

systematic course of business [in the forum].” Daimler, 134 S. Ct. at 761 (quotations

omitted).

       Instead, Daimler reaffirmed the Goodyear standard: general jurisdiction is proper

when a “corporation’s affiliations with the state are so continuous and systematic as to

render them at home in the forum state.” Id. (quoting Goodyear, 564 U.S. at 2851)

(emphasis added). BNYM ignores the “at home” part of the Daimler/Goodyear standard.

       BNYM waived its defense based on Daimler because the same defense was

available to BNYM when it filed its motions to dismiss and its answer. This is so

because Daimler reaffirmed and applied Goodyear, and the defense was available under

Goodyear.

2. Waiver and Tenth Circuit Cases

       BNYM also contends its general jurisdiction argument was not available until

Daimler because this court in Grynberg and Monge interpreted Goodyear to permit


                                            - 14 -
general jurisdiction so long as a corporation had continuous and systematic contacts with

the forum state. Aplt. Br. at 30. We did no such thing. This court has not permitted, and

could not permit under Goodyear, general jurisdiction based only on continuous and

systematic contacts with the forum. The fundamental flaw in BNYM’s argument is its

failure to recognize that Grynberg and Monge denied general jurisdiction.

       Once again, in attempting to restate our precedent, BNYM ignores the “at home”

part of the Tenth Circuit/Goodyear standard. Monge stated that general jurisdiction is

proper only when the defendant’s contacts with the forum state are (1) continuous and

systematic and (2) sufficient to render it at home there, and concluded the defendant’s

contacts did not satisfy this standard. 701 F.3d at 620. Grynberg determined the

defendant’s contacts were not continuous and systematic, 490 F. App’x at 96, obviating

the need to address whether they were sufficient to render the defendant at home in the

forum. Indeed, this court has repeatedly denied general jurisdiction based on the

Goodyear standard.3 Grynberg and Monge both applied Goodyear and are consistent


       3
         In addition to Grynberg and Monge, the Tenth Circuit addressed and rejected
general jurisdiction four other times since Goodyear. See Weldon v. Ramstad-Hvass, 512
F. App’x 783, 788 (10th Cir. 2013) (unpublished) (holding a contract between Wyoming
and Minnesota under which Wyoming prisoners would be housed in a facility in
Minnesota was insufficient to create general jurisdiction over Minnesota prison officials);
Fireman’s Fund Ins. Co. v. Thyssen Mining Constr. of Can., Ltd., 703 F.3d 488, 493-94
(10th Cir. 2012) (holding district court could not assert general jurisdiction over a foreign
corporation based on the managing director’s residence in the state, under an agency
theory); Shrader v. Beann, 503 F. App’x 650, 653-54 (10th Cir. 2012) (unpublished)
(reaffirming holding—from previous appeal in the same suit—that the district court could
not assert general jurisdiction over a website that had no intrinsic connection to the forum
state and that did not conduct business with forum residents in such a sustained manner
that it was tantamount to physical presence in the forum); Beyer v. Camex Equip. Sales &
                                                                               Continued . . .

                                             - 15 -
with Daimler. Neither case established Tenth Circuit precedent preventing BNYM from

raising its general jurisdiction defense because both employed the same standard that the

Supreme Court reaffirmed and applied in Daimler.4

                                      *      *       *

       BNYM’s general jurisdiction defense was available when it previously moved to

dismiss American Fidelity’s original and second amended complaints and when it filed

its answer because the defense could be asserted to the same extent under Goodyear as it

could be asserted under Daimler.5 The defense is therefore waived under Rule 12(h).




Rentals, Inc., 465 F. App’x 817, 818 (10th Cir. 2012) (unpublished) (holding district
court in Colorado could not assert general jurisdiction over Canadian manufacturer after
its truck was purchased by a Wyoming corporation and used by a Wyoming resident to
perform work in Colorado when the truck failed and caused injuries, and the Canadian
corporation lacked continuous and systematic business contacts with Colorado).
       4
         BNYM’s reliance on Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir.
2014), is misplaced. In that case, the Second Circuit determined that a general
jurisdiction defense had not been waived because the circuit’s pre-Daimler precedent did
not allow the defense and Daimler did. Id. at 135-36. By contrast, as explained above,
the Tenth Circuit’s pre-Daimler precedent would have allowed BNYM’s defense to the
same extent Daimler would.
       5
          Concurring in the judgment, Justice Sotomayor described the majority’s
assessment of a corporate defendant’s contacts as a “proportionality inquiry” made in
light of the corporation’s “nationwide and worldwide” activities. Daimler, 134 S. Ct. at
770 (Sotomayor, J., concurring). She critiqued the majority’s analysis and characterized
the proportionality inquiry as a “new rule” requiring that “for a foreign defendant to be
subject to general jurisdiction, it must not only possess continuous and systematic
contacts with a forum State, but those contacts must surpass some unspecified level when
viewed in comparison to the company’s nationwide and worldwide activities.” Id.
(quotations omitted). BNYM does not assert an argument based on anything Daimler
may have added to Goodyear’s general jurisdiction test. Even if Justice Sotomayor’s
concurring view of what she calls Daimler’s “proportionality inquiry” were a correct
                                                                              Continued . . .

                                            - 16 -
                                 IV. CONCLUSION

      We affirm the district court’s decision denying BNYM’s motion to dismiss.6




reading of Daimler’s majority opinion, id., BNYM does not challenge general
jurisdiction based on it.
      6
        Having concluded BNYM waived its defense as to general jurisdiction, thereby
permitting the district court to exercise personal jurisdiction over BNYM, we need not
consider whether the court could also exercise specific jurisdiction over BNYM.



                                          - 17 -
