SHARON GILBERT TIMM, ESQ. 

Attorney I.D. 77778 

Penn’s Court, Suite 111 

350 South Main Street 

Doylestown, PA 18901 

(215) 489-0179 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CAROLIN BRELAND, : CIVIL ACTION 

 Plaintiff, : 

 : No. 02-CV-4401 

v. : 

: 

ATC VANCOM, INC., : JURY TRIAL DEMANDED 

 Defendant. : 

ORDER

 AND NOW, this day of , 2002, upon consideration 

of Defendant’s Motion to Dismiss, or in the Alternative to Transfer Venue and Plaintiff’s 

response thereto, it is hereby ORDERED and DECREED that said motion is DENIED. 

 BY THE COURT, 

 __________________________ 

 J. 

Case 2:02-cv-04401-TON Document 16 Filed 11/14/2002 Page 1 of 5
SHARON GILBERT TIMM, ESQ. 

Attorney I.D. 77778 

Penn’s Court, Suite 111 

350 South Main Street 

Doylestown, PA 18901 

(215) 489-0179 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CAROLIN BRELAND, : CIVIL ACTION 

 Plaintiff, : 

 : No. 02-CV-4401 

vi. : 

: 

ATC VANCOM, INC., : JURY TRIAL DEMANDED 

 Defendant. : 

PLAINTIFF’S SUR-REPLY MEMORANDUM OPPOSING DEFENDANT’S 

MOTION TO DISMISS OR IN THE ALTERNATIVE TRANSFER VENUE 

 Plaintiff, Carolin Breland, by and through her attorney, hereby requests this Court 

to deny Defendant’s Motion to Dismiss or in the Alternative Transfer Venue. 

A. The Defendant has Waived Its Defenses of Insufficiency of Process 

And Service of Process, Personal Jurisdiction and Lack of Venue 

 Defendant claims Plaintiff attempts to create new law by arguing that the 

defenses of improper venue and lack of personal jurisdiction under Fed.R.Civ.P. 12(b) 

are somehow waived if not raised within the 20 day time frame which Rule 12(a)(1) 

allows for Answer to a Complaint, Reply Memorandum at p. 2. 

 Venue challenges are waived unless raised by motion or in the responsive 

pleading, Fed.R.Civ.P. 12(h)(1); Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 

1996), cert. denied, 519 U.S. 930 (1996)(noting that right to contest venue is waived if 

party fails to raise that defense either in responsive pleadings or Rule 12(b)(3) motion); 

Case 2:02-cv-04401-TON Document 16 Filed 11/14/2002 Page 2 of 5
See also Frietsch v. Refco, Inc., 56 F.3d 825, 830 (7th Cir. 1995)(noting that venue 

objections must be asserted at the earliest possible opportunity). 

 Once the Rule 12 motion period and the responsive pleading time have passed, an 

otherwise “waived” venue defense cannot be raised by the court or on its own initiative, 

Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996), cert. denied, 519 U.S. 930 

(1996). A defaulting defendant, thus, generally is deemed to have waived any objections 

to venue, Union Planters Bank, N.A., v. EMC Mortgage Corp., 67 F.Supp.2d 915, 920 

(W.D.Tenn. 1999). 

 Defenses and objections to personal jurisdiction (Rule 12(b)(2)), improper venue 

(Rule 12(b)(3)), insufficient process (Rule 12(b)(4)), and insufficient service (Rule 

12(b)(5)), are waived if: a) not asserted in an omnibus Rule 12 motion, if such a motion 

is made, or b) not asserted in the responsive pleading, of an omnibus Rule 12 motion is 

not made, Posner v. Essex Ins. Co., 178 F.3d 1209, 1213 n.4 (11th Cir. 1999)(defendant 

waived personal jurisdiction challenge by omitting this defense from Rule 12(b) motion); 

McCurdy v. American Bd. of Plastic Surgery, 157 F.3d 191, 195 (3d Cir. 1998)(untimely 

service waived if not raised timely); Texas Municipal Power Agency v. EPA, 89 F.3d 

858, 867 (D.C.Cir. 1996)(improper venue waived for failure to object); Coleman v. Kaye, 

87 F.3d 1491, 1495 (3d Cir. 1996)(absence of personal jurisdiction waived), cert denied, 

519 U.S. 1084 (1997). 

 The waiver provision of Rule 12(h) imposes a mandatory, not discretionary, 

obligation upon the district court, Polaroid Corp. v. Feely, 889 F.Supp. 21 (D.Mass. 

1995). 

Case 2:02-cv-04401-TON Document 16 Filed 11/14/2002 Page 3 of 5
 Here, Defendant claims it received an incomplete copy of the Complaint from 

Plaintiff, Reply memorandum at p. 2. However, as noted above, any defects in service 

are waived if not raised in an omnibus Rule 12 motion. Defendant failed to assert an 

insufficiency of process or service of process defense and cannot use it as an explanation 

or defense within which to claim other Rule 12 defenses. 

 The case cited by Defendant is inapplicable inasmuch as it is a 1985 decision, and 

the case cited by Plaintiff is a 1996 decision that was denied certiorari by the U.S. 

Supreme Court, Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996), cert. denied, 

519 U.S. 930 (1996). 

 As noted in her principal brief, the responsive pleading time and the motion 

period time had passed. Defendant had twenty days within which to raise their waivable, 

at this stage, Rule 12 defenses.1

 Such waiver imposes a mandatory obligation upon this 

court to deny Defendant’s motion. 

 As such, Defendant’s Motion to Dismiss or in the Alternative Transfer Venue 

must be dismissed in its entirety. 

 Respectfully submitted, 

Date: ______________________ ___________________________ 

 Sharon Gilbert Timm, Esquire 

 Attorney for Plaintiff 

 

1

 Plaintiff notes the Rule 12 defenses of failure to state a claim upon which relief can be granted (Rule 

12(b)(6)); failure to join an indispensable party (Rule 12(b)(7)); and failure to state a legal defense (Rule 

12(f)) are waived only if not asserted before the close of trial, Eberhardt v. Integrated Design & Const., 

Inc., 167 F.3d 861, 870-71 (4th Cir. 1999)(ruling that Rule 12(b)(6) defense is waived after completion of 

trial on the merits). Subject matter jurisdiction is always at issue, Mennen Co. v. Atlantic Mutual Ins. Co., 

147 F.3d 287 (3d Cir. 1998)(when jurisdiction is questioned, court is obligated to make independent 

determination of facts). 

Case 2:02-cv-04401-TON Document 16 Filed 11/14/2002 Page 4 of 5
SHARON GILBERT TIMM, ESQ. 

Attorney I.D. 77778 

Penn’s Court, Suite 111 

350 South Main Street 

Doylestown, PA 18901 

(215) 489-0179 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

CAROLIN BRELAND, : CIVIL ACTION 

 Plaintiff, : 

 : No. 02-CV-4401 

vii. : 

: 

ATC VANCOM, INC., : JURY TRIAL DEMANDED 

 Defendant. : 

CERTIFICATE OF SERVICE

 I, Sharon Gilbert Timm, Esquire, attorney for Plaintiff, hereby certify that a true 

and correct copy of Plaintiff’s Sur-Reply Memorandum Opposing Defendant’s Motion to 

Dismiss or in the Alternative Transfer Venue was sent via first-class, postage prepaid 

mail upon the following: 

 Jonathan F. Bloom, Esquire 

 Stradley Ronon Stevens & Young, LLP 

 2600 One Commerce Square 

 Philadelphia, PA 19103-7098 

Date: ________________________ __________________________ 

 Sharon Gilbert Timm, Esquire 

 Attorney for Plaintiff 

 

Case 2:02-cv-04401-TON Document 16 Filed 11/14/2002 Page 5 of 5