Venue Objection Waived

A Deepwater Horizon victim who had sued her law firm for malpractice had the claim improperly dismissed because the suit had been filed in Mississippi rather than the forum designated in the retainer ageement, per a decision of the Mississippi Supreme Court.

The issue was one of venue, not subject matter jurisdiction, and had been waived by the defendant law firm

While Downs Law now insists it had not waived improper venue, the record suggests otherwise. Downs Law’s first responsive filing to Breal’s complaint was the notice of removal. In this filing, Downs Law declared that venue was proper in the [federal court] Southern District because it embraced Hinds County, where the action was originally filed. While the notice also stated that it did not waive any objection it may have had to several issues, including venue, Downs Law did not affirmatively plead improper venue in the answer filed the same day. Contrary to Downs Law’s claim on appeal, the answer was completely silent as to venue. Instead, it merely broadly “plead all applicable defenses available under Rules 12(b) and 8(c)[ of the] Mississippi Rules of Civil Procedure . . . .” Neither did Downs Law raise improper venue in the motion to dismiss filed in federal court three days later. So Downs Law waived enforcement of the forum-selection clause by “the most certain” way—by failing to plead it. US Bancorp, 183 So. 3d at 835.

But even if the boilerplate “all applicable defenses” language was enough to plead improper venue, Downs Law still waived this issue by actively participating in the litigation in Mississippi federal and state court. Id. at 836. After filing an answer, Downs Law filed a motion to dismiss in federal court. Following remand, Downs Law then filed a motion for
summary judgment in Hinds County Circuit Court. Neither of these motions mentioned the forum-selection clause. It was only at a hearing in October 2022—fourteen months after Breal filed her complaint—that the issue of the forum-selection clause was first raised. And it was raised by the trial judge sua sponte, not by Downs Law. Thus, by the time Downs Law moved a month later to dismiss the complaint based on improper venue, Downs Law had actively participated in this case for more than a year.

Because Downs Law had waived any claim of improper venue by the time it filed its motion to dismiss, the trial court erred by granting Downs Law’s motion and dismissing Breal’s complaint due to improper venue. We reverse the judgment of dismissal and remand this case to the trial court.

(Mike Frisch)