Venue Defense is Waived if Not Raised in Initial Rule 12 Motion in Response to Complaint

Jan 07, 2011   

The Eleventh Circuit Court of Appeals in Atlanta on December 28, 2010 rendered a decision in an unpublished opinion finding that a failure to raise a forum selection clause in a Rule 12, Federal Rules of Civil Procedure motion in response to a complaint waives the defense of improper venue of the lawsuit.

In Aero Technologies LLC v. Lockton Companies International Ltd., the trial court had dismissed the claims of Aero Technologies LLC (“Aero Tech”) based on a forum selection clause contained in insurance policies to which neither party to the lawsuit were signatories. Lockton Companies International Ltd., (“Lockton”) had not raised venue as a defense in its initial Rule 12 motion. The Court of Appeals reversed the decision of the trial court finding that Rule 12 (h)(1) of the Federal Rules of Civil Procedure requires venue to be raised in the initial Rule 12 motion or be waived. The Court of Appeals found the trial court erred when dismissing the claim on venue grounds when the defense was not raised by Lockton. A copy of the opinion may be found here.

The lesson of this case is that litigators must be wary to raise venue as a defense when appropriate, whether due to the existence of a forum selection clause or for convenience of the parties at the earliest possible moment or face the consequences of waiver. At Fuerst Ittleman, our experienced litigators are familiar with the law applicable to venue and can ensure a clients case proceeds in the proper venue where appropriate.