Agreement for an Extension of Time Within Which to File an Answer Does Not Waive Venue Defenses

In Ex parte Movie Gallery, the Alabama Supreme Court rejected the plaintiff’s argument that the defendant had waived its venue defenses where the parties agreed to extend the time for Movie Gallery to file its answer.  

Nixon sued Movie Gallery on October 27, 2006.  The parties agreed to an extension of time for Movie Gallery to file its answer, and Movie Gallery answered on December 22, 2006.  It pleaded, among other defenses, "improper venue," but did not reference Rule 12(b)(3).  On February 15, 2007, Movie Gallery filed a motion for a change of venue. 

Nixon argued that Movie Gallery’s statement of "improper venue" in its answer was not sufficient to invoke Rule 12(b)(3) and raise the defense of venue, because "Movie Gallery failed to even cite Rule 12(b)(3) and failed to plead any factual basis for its assertion of improper venue."  Nixon further asserted that Movie Gallery’s motion was untimely filed.   

The court disagreed with Nixon’s argument.  It pointed out that the Alabama Rules of Civil Procedure provide two ways in which the venue chosen by the plaintiff may be challenged at the commencement of the action: Rule 12(b)(3) provides for the challenge of venue within 30 days, either in a responsive pleading, i.e., the answer, or by a motion made before the responsive pleading.  Likewise, the court noted that Rule 82 (d)(1) provides for the transfer of the action by timely motion of the defendant when venue has been laid in the wrong county.  

Here, in including "improper venue" in its answer, Movie Gallery sufficiently invoked that defense, even though it did not include language referencing 12(b)(3).  The court rejected Nixon’s argument that Movie Gallery was required to explictly reference that rule to do so. The court also rejected Nixon’s next argument, that Movie Gallery waived its right to move for a change of venue by agreeing to extend the time for filing an answer.  As a general rule "any effective extension of the period in which to serve a responsive pleading preserves the right to make a motion under Rule 12(b) during the enlarged time period."  Contrary to Nixon’s assertion, then, Movie Gallery fully reserved its right to move for a change of venue under Rule 82(d)(1) by raising the defense of improper venue in its answer. 

After finding that Movie Gallery had sufficiently raised the issue, the court further held that the motion for change of venue was timely filed.  Here, Movie Gallery filed its motion for a change of venue 81 days after its answer would have been due, absent the agreement, and 55 days after its answer was filed pursuant to the agreement.  As a result, the court refused to find that the motion was untimely and reached the merits of the trial court’s venue ruling.