Opinion
Civil Action 00-0383-P-S.
September 7, 2000.
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on Defendant's Motion to Dismiss or in the Alternative for Change of Venue (Doc. 10); Plaintiff's Response in Opposition to Defendant's Motion to Dismiss or, in the Alternative, for Change of Venue (Doc. 16); and Defendant's Reply Brief to Plaintiff's Opposition to Defendant's Motion to Dismiss and for Transfer of Venue (Doc. 18). These matters have been referred to the undersigned Magistrate Judge for a recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and the Local Rules of this Court. Upon consideration of all matters presented, and for the reasons set forth herein, it is recommended that Defendant's Motion to Dismiss or in the Alternative for Change of Venue be DENIED.
In his motion to dismiss, Defendant Paul Johnson ("Defendant") contends that venue is improper in the Southern District of Alabama because Defendant is not a resident of the Southern District of Alabama and because a substantial part of the events giving rise to the claim did not occur in the Southern District of Alabama. In the alternative, Defendant requests a change in venue and asks the Court to transfer this case to the Northern District of Alabama. In response, Plaintiff argues that Defendant waived any objection to improper venue when he filed an untimely answer and that, nonetheless, venue is proper in the Southern District of Alabama.
Rule 12 of the Federal Rules of Civil Procedure, which governs the time and manner of presentation of objections and defenses, provides in pertinent part as follows:
a. When presented.
(1) Unless a different time is prescribed in a statute of the United States, a defendant shall serve an answer
(A) within 20 days afer being served with the summons and complaint . . .
b. How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except the following may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted . . .h. Waiver or Preservation of Certain Defenses.
(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or amendment thereof permitted by Rule 15(a) to be made as a matter of course . . .
Fed.R.Civ.P. 12 (emphasis added).
Venue defects are waived absent a timely and sufficient objection by the defendant. Manley v. Engram, 755 F.2d 1463, 1468 (11th Cir. 1985) ("Indeed, the right to object to improper venue may be waived . . . by failure to interpose a timely and sufficient objection."); see also Peterson v. BMI Refractories, 124 F.3d 1386, 1391 (11th Cir. 1997),citing 28 U.S.C. § 1406 ("Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose a timely and sufficient objection to venue."). "A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it . . ."Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960) (citations omitted).
As set forth above, Rule 12(a) requires a defendant to serve an answer within twenty days after the service of the summons and complaint. Thus, pursuant to Rule 12(b) and 12(h)(1), the defense of improper venue must be raised, either by timely responsive pleading or by motion, within the twenty days allowed for an answer, or the objection is waived. In this case, Defendant was served with the summons and complaint on April 29, 2000. See Doc. 4. Defendant had twenty days, or until May 19, 2000, to file a timely responsive pleading. However, Defendant did not file his answer with this Court until June 16, 2000, well outside the twenty day period for the filing of responsive pleadings. In addition, Defendant did not file a motion to dismiss for improper venue within the twenty day period. As such, Defendant has failed to raise the defense of improper venue, either by timely answer or by motion, within the twenty days allowed for responsive pleadings. Therefore, Defendant has waived any objection to improper venue based on his failure to assert a timely and sufficient objection. As stated above, "a defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it . . ." Hoffman, 363 U.S. at 343, 80 S.Ct. at 1089.
Accordingly, the Court finds that Defendant waived any objection to improper venue when he failed to timely raise the defense. Therefore, the undersigned Magistrate Judge recommends that Defendant's Motion to Dismiss or in the Alternative for Change of Venue be DENIED.
The attached sheet contains important information regarding objections to this recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects-to this recommendation, or anything in, it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this Court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify; those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.