Ryan v. Glenn, EC 7083.

• Decision Date: 30 December 1971
• Docket Number: No. EC 7083.,EC 7083.
• Citation: 336 F. Supp. 555
• Parties: Allan A. RYAN and Lee Leachman, Comprising a Partnership known as Ankony Farm, Plaintiffs, v. Coy GLENN, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

336 F. Supp. 555

Allan A. RYAN and Lee Leachman, Comprising a Partnership known as Ankony Farm, Plaintiffs, v. Coy GLENN, Defendant.

No. EC 7083.

United States District Court, N. D. Mississippi, E. D.

December 30, 1971.

Robert D. Patterson and C. Michael Malski, Aberdeen, Miss., for plaintiffs.

William S. Turner, Aberdeen, Miss., Fred M. Bush, Jr., Tupelo, Miss., for defendant.

MEMORANDUM OPINION

KEADY, Chief Judge.

This suit began as one to collect a fixed sum of money due as principal ($27,620.78) and accrued interest ($5,524.16) allegedly payable by defendant under a contract for the sale of a one-half interest in a prize Aberdeen Angus bull named Ankonian Jupiter. Defendant first moved to dismiss for plaintiff's failure to state a claim for relief and for improper venue. The court overruled the motion in both respects. Ryan v. Glenn, 52 F.R.D. 185 (N.D. Miss.1971). Defendant subsequently moved to reopen the issue of venue, but this was denied. By his answer defendant denied he owed the balance demanded because of fraudulent inducements by plaintiffs and counterclaimed for the recovery of all sums paid to plaintiffs ($106,250) under the contract on allegations that, when the contract was made, plaintiffs concealed from him the true facts regarding the bull's potentiality as a breeder and falsely and fraudulently represented that Ankonian Jupiter was a good breeding bull, capable of producing breeding stock, but in the bull's subsequent breeding on approximately 150 occasions not one of his calves turned out to be any good as breeding stock. Plaintiffs entered a reply to the counterclaim denying the claims of fraudulent concealment and misrepresentation.

On September 8, 1971, plaintiffs moved to strike defendant's answer and counterclaim for legal insufficiency and for summary judgment as to the sums of money demanded in their complaint. Defendant on October 28, 1971, responded by moving for summary judgment in his favor on the complaint, again charging that this court was without venue or jurisdiction to hear the cause. Each side filed various affidavits, briefs and other evidentiary materials in support of their respective motions.

It is logical that defendant's present challenge to venue be first considered. There is excellent authority for the view that objection to venue is waived by the assertion of a counterclaim. Rubens v. Ellis, 202 F.2d 415 (5 Cir. 1953). A holding of waiver, however, does not seem fair or equitable where the defendant, as here, timely objected to venue and, upon being overruled and ordered to answer, was obligated to assert a compulsory counterclaim. Indeed, some cases hold that waiver does not result when the counterclaim asserted is a compulsory one. Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9 Cir. 1967); Hasse v. American Photograph Corp., 299 F.2d 666 (10 Cir. 1962); Wright and Miller, Federal Practice and Procedure, § 1397, p. 878. A sounder ground for not reexamining the venue challenge is that this court gave the defendant full opportunity to develop his case for lack of venue, following which the court found facts on conflicting evidence to support venue. Where improper venue is asserted in a Rule 12(b) motion, the defense may properly be heard preliminarily before trial upon the application of any party, unless the court orders that the hearing and determination be deferred until the trial. Rule 12(d). As stated by Professor Moore: "The emphasis of (d) is in the direction of hearing such defenses prior to trial. Certainly it will be advisable generally to decide such defenses as lack of jurisdiction over the subject matter, lack of jurisdiction of the person, improper venue, insufficient process or service of process, or failure to join an indispensable party, promptly after they are raised, and not defer them to the trial." 2A Moore's Federal Practice, § 12.16, p. 2352. Courts should avoid "fragmentary and separate trials of issues that require coherent presentation for their just determination." Winkler v. New York Evening Journal, 32 F.Supp. 810, (E.D.N.Y.1940).

The court's venue was a matter to be orderly settled as provided by Rule 12(d), rather than upon a motion for summary judgment. Heyward v. Public Housing Administration, 238 F.2d 689 (5 Cir 1956). In any case, we have affirmatively held that venue existed and thereafter rejected defendant's effort to obtain reconsideration. Notwithstanding, the defendant has proceeded to develop his case for improper venue as though the issue were an open one. Necessarily, a court which has once determined a preliminary issue such as venue is not obliged to retrace its steps and examine the identical contention in the light of new evidence belatedly offered. In short, defendant may not have a second bit at the "venue apple".

Even if venue were to be reconsidered, the clear fact is that, however the prior negotiations in New York might be...