Summary
finding waiver even where, as here, an objection to venue requires an analysis of personal jurisdiction
Summary of this case from Johnson v. UMG Recordings, Inc.Opinion
No. 3:02-CV-2298-H
January 31, 2003
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' 12(b)(3) Motion to Dismiss, filed November 21, 2002, Plaintiffs Response, filed December 10, 2002, and Defendants' Reply, filed December 20, 2002.
I. Background
On October 21, 2002, Plaintiff filed this suit for federal copyright infringement, federal trademark dilution, unfair competition, and deceptive trade practices. Defendants filed their answer on November 21, 2002. Defendants also filed this Motion to Dismiss at that time. Defendants allege that venue is improper in this district because "neither Defendant to this action resides in the Northern District of Texas nor do they have any agents who reside in the Northern District of Texas." M. to Dismiss at 2. Furthermore, Defendants allege that neither Defendant does business in the state of Texas. Id. These assertions are supported by an unsworn declaration signed by Defendant Joseph M. Brewer ("Brewer") that meets the requirements for unsworn declarations under 28 U.S.C. § 1746. Plaintiff argues that under § 1400, venue is proper wherever personal jurisdiction may be found. Since the exercise of personal jurisdiction in this case would be proper, the Plaintiff argues, venue is also proper and the case should remain in this Court. Plaintiff also argues that Defendants have waived their right to contest personal jurisdiction in this case.
That is that the declaration is subscribed to under penalty of perjury, signed and dated. 28 U.S.C. § 1746.
II. Analysis
A. Personal Jurisdiction
The Court begins its analysis with Plaintiffs assertion that Defendants have waived their rights to contest personal jurisdiction in this case by filing a 12(b)(3) motion to dismiss without joining a 12(b)(2) motion at the same time. Federal Rule 12(g) provides that a party can make only one Rule 12 motion (with exception to Rule 12(h)(2) motions which are not relevant here). Any possible ground for dismissal not raised in the first motion is waived. Because Defendants did not move to dismiss under 12(b)(2) at the same time they moved for dismissal under 12(b)(3), Defendants have waived their right to object to personal jurisdiction. See, e.g. Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 40-41 (1st Cir. 2001); Voss Prods., Inc. v. Aqua Railers, Inc., 1999 WL 33290614, *2-3 (W.D. Tex. March 16, 1999). Defendants state that "an objection to improper venue necessarily implicates questions of personal jurisdiction." Def.'s Reply at 2. That is true in this case as discussed in more detail below. However, Defendants' further statement that "[t]herefore Defendants have asserted that Defendants are not subject to the personal jurisdiction of this Court" is without merit. Nothing in Defendants' Motion to Dismiss in any way raises the issue of personal jurisdiction. The fact that the analyses are interrelated in cases under § 1400 does not make raising only one of the grounds for dismissal sufficient. Furthermore, Defendants' attempt to remedy the omission by filing an amended Answer which denies that Defendants are subject to personal jurisdiction in the Northern District of Texas is inadequate. Defendants reliance on Rule 12(h)(1)(B) to support their assertion that the filing of an amended answer will remedy the original omission is misplaced. Where a defendant has first filed a motion omitting the defense of lack of jurisdiction over the person, as is the case here, such a defense is waived. Fed.R.Civ.Pro. 12(h)(1)(A). Rule 12(h) provides multiple ways to waive jurisdiction, not alternative methods of un-waiving it. Once the Defendants filed their initial motion under 12(b)(3) without including an assertion that personal jurisdiction was improper, the defense was waived. See 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1391 (2d ed. 2002) (litigant must raise defense of personal jurisdiction at the time he makes his "first significant defensive move — whether it be by way of a Rule 12 motion or a responsive pleading"); see also, Mitrano v. Jerry's Ford Sales, Inc., 82 F.3d 403, 1996 WL 184501, *2 (1st Cir. 1996) (unpublished). This mistake cannot be remedied by later filing an amended answer. By filing a motion to dismiss under 12(b)(3) without also filing a motion under 12(b)(2), Defendants have submitted to the jurisdiction of this Court. Therefore, Defendants are subject to personal jurisdiction in this district.
B. Venue
The Court looks to 28 U.S.C. § 1400 to determine whether venue is proper in this case. Section 1400 provides that "civil actions, suits, or proceedings arising under any Act of Congress relating to copyrights . . . may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400. It is well established that, for purposes of Section 1400(a), a defendant "may be found" in any district in which it is subject to personal jurisdiction. See e.g., Milwaukee Concrete Studios Ltd. v. Field Mfg. Co., 8 F.3d 441, 445-47 (7th Cir. 1993); Johnson v. Tuff'n Rumble Mgt., Inc., 1999 WL 120189 (E.D. La. Dec. 15, 1999). Because the Court has found that personal jurisdiction exists over Defendants, venue is also proper in this district.
III. Conclusion
Having held that venue is proper in the Northern District of Texas, Defendants' 12(b)(3) Motion to Dismiss is DENIED.
SO ORDERED.