There’s going to be a lot of litigation over whether a defendant who failed to object to venue pre-TC Heartland can raise it now. In fact, why not a plaintiff?
One argument has succeeded, but I honestly wonder about its foundation. The argument goes like this: (a) Rule 12 only operates to waive certain 12(b) “defenses,” including improper venue, only if the defense was “available” when the defendant filed its answer or filed its pre-answer motion (waiver also occurs if someone includes an objection to improper venue in its answer, but doesn’t raise it promptly in a post-answer motion); (b) because of VE Holdings, the objection to improper venue was not available; and so (c) there was no waiver and the objection is now available. A recent district court Westech Aerosol Corp. v. 3M Co. (W.D. Wa. June 21, 2017) accepted this argument, allowed the objection to be raised. It did, however, consider issues like prejudice and delay — which, ordinarily, aren’t issues in improper venue motions.
Well, okay maybe. But if I were a judge, especially if the case had been pending a while, I’d say: “the defendant in TC Heartland raised the issue, so are saying you’re special, and it was ‘available’ only to that defendant?” Put in legalese, there has been a non-frivolous basis for arguing that VE Holdings was wrongly decided since, well, the day that case was decided.
Granted, there is probably a spectrum here: a defendant who included the objection to improper venue in its answer, but then did not move to dismiss, is no doubt in a better place than a defendant who did not include it at all (at least as far as atmospherics go), and plainly courts should consider the disruption and prejudice that these “now available” motions will raise.
Competent lawyers should think about whether to raise the defense (it may be a bad idea for a client, even if it is available), and how to defeat it. Likewise, a plaintiff might consider a strategic motion, too!