Realtime Data LLC d/b/a IXO v. Barracuda Networks, Inc., 6-17-cv-00120 (TXED July 14, 2017, Order) (Love, MJ)
Tuesday, July 18, 2017
Previously Waived Venue Objection Cannot be Revived Via Request to Amend Pleading
Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.Ct. 1514 (2017), the court denied defendant's motion to amend its answer to add a venue challenge. "In its original Answer to [plaintiff's] Complaint, [defendant] had stated that it 'does not dispute that venue is proper in this judicial district.'. . . [Defendant] thus waived its venue defense. [Defendant's] Motion for Leave, in effect, is an attempt to circumvent this waiver. However, the Advisory Committee Notes are clear that the defenses listed in Rule 12(b)(2)-(5) 'are of such character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading.'. . . Allowing [defendant] to amend its Answer to assert improper venue -- after [defendant] specifically stated that venue was proper in its original answer and failed to amend as a matter of course -- would also be unduly prejudicial to [plaintiff], as it would fundamentally alter the nature of the case."