Totalplan Corp. of America v. Lure Camera Ltd.

• Decision Date: 31 January 1985
• Docket Number: No. CIV-82-698E to CIV-82-701E.,CIV-82-698E to CIV-82-701E.
• Citation: 613 F. Supp. 451
• Parties: TOTALPLAN CORP. OF AMERICA, Plaintiff, v. LURE CAMERA LIMITED, Defendant. TOTALPLAN CORP. OF AMERICA, v. Richard L. MIKESELL, Defendant. TOTALPLAN CORP. OF AMERICA, Plaintiff, v. Wendell A. LEWIS, Harry S. Montgomery, Walter Petrovsky, Defendants. TOTALPLAN CORP. OF AMERICA, Plaintiff, v. NORTHWEST PIPE & SUPPLY CO., LTD., Michael Chwelos, Robert B. Colborne, Carmen Strong, James Boughton, John T. Brown, William Meiklejohn, Keith Yardley, Defendants.
• Court: U.S. District Court — Western District of New York

613 F. Supp. 451

TOTALPLAN CORP. OF AMERICA, Plaintiff, v. LURE CAMERA LIMITED, Defendant.

TOTALPLAN CORP. OF AMERICA, v. Richard L. MIKESELL, Defendant.

TOTALPLAN CORP. OF AMERICA, Plaintiff, v. Wendell A. LEWIS, Harry S. Montgomery, Walter Petrovsky, Defendants.

TOTALPLAN CORP. OF AMERICA, Plaintiff, v. NORTHWEST PIPE & SUPPLY CO., LTD., Michael Chwelos, Robert B. Colborne, Carmen Strong, James Boughton, John T. Brown, William Meiklejohn, Keith Yardley, Defendants.

Nos. CIV-82-698E to CIV-82-701E.

United States District Court, W.D. New York.

January 31, 1985.

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John F. Papsidero, Tonawanda, N.Y., for plaintiff.

R.L. Miklesell, Craig L. Miller, Buffalo, N.Y., for defendants.

MEMORANDUM and ORDER

ELFVIN, District Judge.

These four related actions, involving allegations of breach of contract, fraud, unfair competition, theft of trade secrets, slander and trademark infringement, apparently constitute attempts to cure venue defects in an earlier action, Totalplan Corp. of America v. Lure Camera, et al., CIV-72-699, which I dismissed on such basis July 18, 1980. I found that result to be required by 28 U.S.C. § 1391(b) which provides that where, as here, jurisdiction in a civil action "is not founded solely on diversity of citizenship," such action "may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." I found venue to be improper in the Western District of New York because none of the defendants resides in this district and not all of plaintiff's claims arose in this district. I further found that I was unable to transfer that case to any district because there was no district in which the section 1391(b) venue requirements were satisfied as to the case in its then posture, and hence no district in which the case "could have been brought" within the meaning of 28 U.S.C. § 1406(a). The action was accordingly dismissed.

Plaintiff has now filed the present four suits, dropping some of the original defendants and dividing the others among the four suits. Defendants have moved to dismiss each action for lack of personal jurisdiction over defendants under New York's jurisdictional statutes, lack of proper venue and failure of certain of the "causes of action" alleged in the within Complaints to state a claim.

As a preliminary matter, it is necessary to review the time when the Complaints were served on the various defendants, plaintiff having urged that the instant motions should be denied as not timely filed under Fed.R.Civ.P. rule 12(b). I conclude that most of the defendants have waived their rights to object to this court's exercise of personal jurisdiction over them and to venue in this court, by their failures to move on such matters prior to the expiration of the time in which a responsive pleading was required. Fed.R.Civ.P. rule 12(h)(1).

In CIV-82-698E, service of the Summons and Complaint upon the sole defendant therein, Lure Camera Limited, was made by mail August 18, 1982; the return receipt attached to the affidavit of service indicates receipt by Lure August 24th. In this case, as in each of the others, no stipulation of extension of time to answer or move was obtained and defendant served its motion to dismiss September 30, 1982.

In CIV-82-699E, defendant Richard L. Mikesell, who is also the attorney for all defendants in these cases, was served by plaintiff August 18, 1982 by service in person at an address in Encino, Cal.

In CIV-82-700E, Walter Petrovsky was personally served August 20, 1982 at an address in Pasadena, Cal. Harry S. Montgomery was personally served at an address in Colorado Springs, Col. August 30, 1982. Service has not been proven on Wendell A. Lewis. Petrovsky, according to the notice of motion in CIV-82-700E, does not join in such motion. Lewis has waived any objection to insufficiency of service of process against him (as indeed have all defendants in these actions), by failing to have asserted such defense in his motion to dismiss (see discussion infra).

In CIV-82-701E, service upon defendants Robert B. Colborne, Carmen Strong, James Boughton, John T. Brown and Keith Yardley was made by mail August 18, 1982; return receipts attached to the affidavits of service indicate receipts of process by these defendants August 23rd and August 26th. The remaining defendants in CIV-82-701E — Northwest Pipe & Supply Co., Ltd. ("Northwest Pipe"), Michael Chwelos and William Meiklejohn — were not served by mail until September 10, 1982.

Rule 12(a) of the Federal Rules of Civil Procedure provides: "A defendant shall serve his answer within 20 days after the service of the summons and complaint upon him." Paragraph (b) of this rule, governing the time and manner of presentation of defenses and objection, provides:

"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 that the following defenses 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." (Emphasis added.)

Thus under rules 12(a) and 12(b), a motion to dismiss any claim raised in the Complaint on any of grounds 2 through 7 stated in (b) must be brought, if at all, within the twenty days allowed for an answer by (a). Under paragraph (h)(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 an amendment thereof permitted by rule 15(a) to be made as a matter of course."

Paragraph (g) referred to in (h)(1)(A) requires a 12(b) motion to include all available defenses recited in paragraph (b), at the cost of being thereafter precluded from thereafter making any motion based on any omitted defenses, except as permitted by paragraph (h)(2). Paragraph (h)(2) expressly preserves against waiver "the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim * * *, as well as the defense of lack of jurisdiction over the subject matter." Notes of Advisory Committee on Rules, 1966 Amendment.

"Venue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default." Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960). Thus an assertion of lack of jurisdiction over the person or lack of proper venue is waived if not made prior to the time when the proponent is required to appear in response to the pleading sought to be challenged, in this case within twenty days of the service of the Summonses and Complaints as provided by rule 12(b), as the plain wording of rule 12(h)(1) indicates. See, also, Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714, 61 L.Ed.2d 464 (1979) ("Neither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties."); Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179-80, 49 S.Ct. 98, 99-100, 73 L.Ed. 252 (1929) ("We are of the opinion that the privilege of challenging venue is of such a nature that it must be asserted at latest before the expiration of the period allotted for entering a general appearance and challenging the merits. * * * A contrary conclusion would be in our opinion subversive of orderly procedure and make for harmful delay and confusion."); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir.1966); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir.1944); Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa.1966); Nelson v. Victory Electric Works, 210 F.Supp. 954, 956 (D.Md.1962). All defendants in these four actions, except Northwest Pipe & Supply Co., Ltd., Michael Chwelos, William Meicklejohn and Walter Lewis, having been served with process between thirty-five and forty-two days before they served their motions to dismiss for lack of venue and lack of personal jurisdiction, have, as I said, waived their right to advance these defenses or the other defenses recited in rule 12(h)(1), including insufficiency of service of process.

By appearing on the instant motion without objecting to any lack of service of process on himself, defendant Lewis has submitted to this court's jurisdiction and waived any objection to the sufficiency of service of process. However, his motion to dismiss is timely inasmuch as he came under no obligation to respond to the Complaint until his appearance without objection to lack of service, and hence the venue and personal jurisdiction defenses may be considered as to him as well as to defendants Northwest Pipe, Chwelos and Meiklejohn, all domiciled outside of New York, who moved against the Complaint within twenty days of being served with process by mail.

It is arguable that the dismissal motions of those defendants who have waived their venue and personal jurisdiction privileges by the untimeliness of their motions ought not to be entertained at this time, but in view of their...