Legal Definitions - appearance de bene esse

An appearance de bene esse (Latin for "conditionally" or "provisionally") refers to a specific type of court appearance made by a party, typically a defendant, who wishes to challenge the court's authority or jurisdiction over them or the case itself. By making an appearance de bene esse, the party is *not* agreeing to participate in the lawsuit's main arguments or merits. Instead, they are appearing *solely* for the limited purpose of arguing that the court lacks the legal power to hear the case against them. This allows them to contest jurisdiction without inadvertently waiving their right to do so by making a general appearance.

• Example 1: Challenging Personal Jurisdiction for an Out-of-State Company

  Imagine a small online retail company based in Montana that sells custom-made furniture. A customer in New York sues the Montana company in a New York state court, claiming a breach of contract. The Montana company believes it has no significant business operations, employees, or "minimum contacts" with New York that would give a New York court the authority to hear a case against it.

  The Montana company's lawyer would file an appearance de bene esse. This action signals to the New York court that the company is appearing *only* to argue that the court lacks personal jurisdiction over it. They are not filing a defense against the customer's claims about the furniture; they are strictly challenging the court's power to compel them to defend themselves in New York. If their challenge is successful, the case against them in New York would be dismissed, forcing the customer to sue in Montana or a federal court with proper jurisdiction.

• Example 2: Challenging Improper Service of Process

  A person receives a summons and complaint for a lawsuit, but they believe the documents were not delivered to them according to the legally required procedures (e.g., the papers were left with a temporary houseguest who was not authorized to receive legal mail, or they were mailed to an old address). Proper service of process is often a prerequisite for a court to have jurisdiction over a defendant.

  The person's attorney would make an appearance de bene esse to argue that the court lacks jurisdiction because the defendant was never properly served. By doing so, they avoid making a "general appearance" (which would acknowledge the court's jurisdiction) while still challenging the procedural defect. If the court agrees that service was improper, the lawsuit might be dismissed, or the plaintiff would be required to re-serve the defendant correctly before the case can proceed.

• Example 3: Challenging Subject Matter Jurisdiction in an Inappropriate Court

  Consider a situation where a state's small claims court, which typically handles disputes involving limited monetary amounts and specific types of cases (like landlord-tenant issues or minor contract disputes), is asked to rule on a complex federal intellectual property dispute, such as a patent infringement claim. Federal patent law falls under the exclusive jurisdiction of federal courts.

  If one of the parties to the patent dispute makes an appearance de bene esse in the small claims court, they are doing so to argue that this particular court, despite being a legitimate court, does not have the legal authority (subject matter jurisdiction) to hear *this specific type* of case. They are not arguing the merits of the patent infringement itself, but rather that the small claims court lacks the power to decide such a specialized federal matter. If successful, the small claims court would dismiss the case, requiring the plaintiff to refile in the appropriate federal court.