MURDOCK, Justice.
Michelin North America, Inc. ("MNA"), and Michelin Americas Research & Development Corporation ("MARC") (hereinafter referred to collectively as "Michelin")
On September 27, 2006, Gustavo Perez Lopez was driving his 1997 Ford Explorer sport-utility vehicle on I-65 in Prattville, a city located in Autauga County. Allegedly, the tread of the right rear tire on the vehicle separated from the tire carcass, causing the vehicle to become uncontrollable. The vehicle rolled over, and Lopez sustained fatal injuries as a result.
On September 11, 2007, Shane Seaborn, as administrator of Lopez's estate,
On October 15, 2007, MNA and MARC filed separate answers to the complaint in which they each denied the allegation that venue was proper in Barbour County and asserted the affirmative defense of improper venue, stating that the Barbour Circuit Court "should transfer the case to Autauga County, Alabama, where venue is proper." MNA stated that it is a New York corporation with its principal place of business in Greenville, South Carolina; MARC stated that it is a Delaware Corporation with its principal place of business in Greenville, South Carolina.
On November 27, 2007, and January 22, 2008, respectively, Seaborn filed first and second amended complaints in which he continued to allege that venue was proper in Barbour County. On December 11, 2007, and February 1, 2008, respectively, MNA and MARC filed answers to Seaborn's first and second amended complaints in which each again denied that venue was proper in Barbour County and pleaded improper venue as an affirmative defense, stating that the Barbour Circuit Court "should transfer the case to an alternative county where venue is proper, such as Tuscaloosa County, Alabama[
On April 21, 2008, MNA and MARC filed a joint motion for a change of venue pursuant to Rule 82(d)(1), Ala. R. Civ. P., on the ground that venue was improper in Barbour County or, in the alternative, on the ground that, if venue in Barbour County was proper, the action should be transferred based on the doctrine of forum non conveniens pursuant to § 6-3-21.1. Michelin filed affidavits and excerpts from witness depositions in support of its motion.
On the same date it filed its motion for a change of venue, Michelin removed the action to the Federal District Court for the Middle District of Alabama. On February 20, 2009, the federal district court remanded the action to the Barbour Circuit Court for lack of subject-matter jurisdiction. See Seaborn v. Michelin North America, Inc., (No. 2:08cv305-MEF., Feb. 20, 2009) (M.D.Ala.2009) (not reported in F.Supp.3d).
On February 25, 2009, Michelin renewed its motion for a change of venue on the alternative grounds of improper venue and forum non conveniens. In its response to the motion, Seaborn contended that Michelin could not invoke the doctrine of forum non conveniens because, it argued, Michelin "presented no evidence that Barbour County was [a] proper venue at the time of filing [the action]." Seaborn did not dispute Michelin's evidence indicating that neither MNA nor MARC did business by agent in Barbour County.
Following a hearing, in an order entered on May 18, 2009, the circuit court denied Michelin's motion for a change of venue. As to the issue of forum non conveniens, the circuit court concluded that a transfer to another venue was not appropriate because "there is no evidence before the Court that venue was proper [in Barbour County] at the time of filing [of the action]." In rejecting Michelin's argument that venue was not proper in Barbour County, the circuit court reasoned as follows:
Michelin timely filed its petition for a writ of mandamus following the circuit court's ruling on its motion for a change of venue. This Court granted Michelin's motion
Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).
Michelin first contends that venue is improper in Barbour County and that it made a timely objection to venue and filed a timely motion to transfer venue. It insists that the circuit court clearly erred in concluding otherwise.
The circuit court concluded that Michelin's motion for a change of venue was untimely first because it believed Michelin had to file its motion within 30 days.
Rule 82(d), Ala. R. Civ. P.
The circuit court apparently understood Rule 82(d)(2)(C)(iii) to refer to motions for a change of venue that are made under Rule 82(d)(1) as well as Rule 82(d)(2). As we recently observed, however, "Rule 82(d)(2)(C)(i)-(iii), by its wording, does not apply to improper venue as of the commencement of the action. . . ." Ex parte Movie Gallery, Inc., 31 So.3d 104, 112 (Ala.2009). In other words, Rule 82(d) does not impose a 30-day time limit for filing a motion for a change of venue when venue is improper at the commencement of the action. Instead, Rule 82(d)(1) requires a "timely motion" by the defendant.
The cases cited by the circuit court in its order denying Michelin's motion for a change of venue do not contradict Movie Gallery. In Ex parte DaimlerChrysler Corp., 952 So.2d 1082, 1098 n. 7 (Ala.2006), this Court stated:
(Emphasis added.) The DaimlerChrysler Court was simply observing that Rule 82(d) pertains to transfers based on improper venue and does not address transfers based on forum non conveniens.
The circuit court also cited a footnote in Justice Beatty's special concurrence in Ex parte Starr, 419 So.2d 222 (Ala.1982), in which he stated that "[t]he amended version of Rule 82, effective March 1, 1982, and thus not applicable here, defines what is [a] timely [motion for a change of venue] but does not address the situation presented here." 419 So.2d at 224 n. 1 (Beatty, J., concurring specially). Justice Beatty's statement was general in nature; it did not specifically state that a 30-day time limit is applied to motions challenging venue at the commencement of the action.
As this Court explained in Movie Gallery:
31 So.3d at 109. Michelin pleaded improper venue in each of its answers to Seaborn's complaints, and it specifically requested in those answers that the circuit court transfer the action to a proper venue. Thus, like the defendant in Movie Gallery, "by asserting its defense of improper venue in its answer, [Michelin] preserved its right to file a timely motion for a change of venue under Rule 82(d)(1). . . ." 31 So.3d at 111.
The remaining issue, therefore, is whether Michelin's motion for a change of venue was "timely" under Rule 82(d)(1). The circuit court again cited Starr — this time the main opinion — for support of its secondary finding that Michelin's motion was "generally untimely." Starr is distinguishable, however. The Starr Court stated, in pertinent part:
Starr, 419 So.2d at 223 (emphasis added).
In contrast to the circumstances in Starr, between October 15, 2007, and February 1, 2008, Michelin timely filed answers to the plaintiff's original complaint and two amended complaints. Each of these answers contained clear assertions of the defense of improper venue. Two and a half months after the filing of the last of these answers, Michelin filed a motion for a change of venue.
Seaborn contends that Michelin's motion for a change of venue is generally untimely because Michelin "waited over seven (7) months before it sought to transfer venue under Rule 82 despite knowing that venue was improper when it was first served with the Complaint." Seaborn argues that Michelin's behavior in filing its motion for a change of venue is contrary to the notion that the Alabama Rules of Civil Procedure are designed to "secure the just, speedy and inexpensive determination of every action." Rule 1(c), Ala. R. Civ. P. Seaborn alleges that "Michelin was neither vigilant nor diligent in filing its motion to transfer."
There are several problems with Seaborn's contention. First, as noted, Michelin filed its motion for a change of venue two and a half months after MNA and MARC filed their answers to Seaborn's second amended complaint. In Movie Gallery, by comparison, this Court concluded that a defendant's motion to transfer an action based on improper venue was timely when it was filed 81 days after the defendant's answer normally would have been due — almost 4 months after the complaint was filed — and 55 days after the defendant's answer actually was filed pursuant to an agreement to extend the time for filing an answer. See Movie Gallery, 31 So.3d at 111.
Second, Seaborn's claim that Michelin knew that venue was improper in Barbour County from the outset of the action ignores the fact that Michelin needed to provide support for its motion for a change of venue. See Ex parte Pratt, 815 So.2d 532, 538 (Ala.2001) ("Once the party challenging venue has met the burden of pleading improper venue, he then has the burden of proving that venue is improper."). A defendant may need at least some time to marshal evidence to prove the allegation that venue is improper. Indeed, federal courts have explicitly concluded that the invocation of discovery does not always serve as a waiver of the defense of improper venue if the defense has been properly pleaded by the defendant. See, e.g., Shaw v. United States, 422 F.Supp. 339, 341 (D.C.N.Y.1976): "The taking of depositions would not, by itself, produce a waiver of the venue issue, . . . especially where, as here, discovery was necessary to frame the averments included in the motion to dismiss or transfer that was ultimately made." See also 14D Charles Alan
Michelin argues that its delay in filing the motion for a change of venue was due in part to its seeking discovery to support its alternative ground for its motion for a change of venue, forum non conveniens. Seaborn argues that this is not a legitimate reason because, it says, the doctrine of forum non conveniens applies only where the action is commenced in a county where venue is appropriate, see, e.g., Ex parte Townsend, 589 So.2d 711, 714 (Ala. 1991), and "Michelin knew venue was improper at the commencement of this action." Parties are permitted to make arguments in the alternative, however. Here, Michelin was confronted with a complaint filed in Barbour County by a plaintiff who thereby took the position that Barbour County was in fact a proper venue. Faced with that position advanced by the plaintiff, and having no guarantee that it would prevail against the plaintiff's own position that venue in Barbour County was proper, Michelin simply found it prudent to assert and prepare an alternative basis for transfer of the action, i.e., forum non conveniens. See, e.g., National Sec. Ins., 727 So.2d at 789 (defendant filed a motion to dismiss or to transfer the action "based on improper venue and on the doctrine of forum non conveniens," though only one could apply).
In short, Michelin consistently preserved its right to file a timely motion for a change of venue in each of MNA's and MARC's answers to Seaborn's complaint and amended complaints. It then engaged in discovery aimed at supporting such a motion. Upon completion of that discovery, it filed a motion for a change of venue on the alternative bases of improper venue and forum non conveniens. Seaborn has conceded in the circuit court and on appeal that venue is improper in Barbour County, and the circuit court noted in its order that there was no evidence indicating that venue was proper in Barbour County at the time the action was filed. Under these circumstances, we conclude that Michelin's motion for a change of venue was not untimely and that the circuit court erred in denying Michelin's motion on that basis.
Because we conclude that Michelin carried its burden of demonstrating that venue was improper in Barbour County at the commencement of this action, and because Michelin did not waive its objection to improper venue, we grant Michelin's petition for a writ of mandamus. The circuit court is ordered to transfer the action to a proper venue.
PETITION GRANTED; WRIT ISSUED.
COBB, C.J., and STUART and BOLIN, JJ., concur.
LYONS, J., concurs specially.
LYONS, Justice (concurring specially).
I concur fully in the main opinion. I write specially to observe that there is room for improvement in the clarity of
I plead guilty to contributing to the confusion because I, as a member of the Advisory Committee on the Alabama Rules of Civil Procedure, had the laboring oar in drafting this portion of Rule 82, added by amendment in 1982. It never occurred to me that the waiver provided for in Rule 82(d)(2)(C)(iii) would apply beyond the circumstances of Rule 82(d)(2)(C)(i)-(ii), dealing exclusively with improper venue arising after the commencement of the action. My recollection is corroborated by the Committee Comments to Rule 82 as Amended Effective March 1, 1982, which I also wrote, stating, "So as to eliminate any potential for abuse by reason of undue delay in seeking a transfer which becomes available under Rule 82(d)(2), certain time limits in which action must be taken are prescribed by Rule 82(d)(2)(C)." (Emphasis added.) Ex parte Movie Gallery, Inc., 31 So.3d 104 (Ala.2009), is consistent with the foregoing view limiting the applicability of Rule 82(d)(2)(C)(iii) to circumstances where venue becomes improper after commencement of the action, the subject matter of Rule 82(d)(2). For the sake of clarity, I recommend that the Advisory Committee on the Alabama Rules of Civil Procedure consider amending Rule 82(d)(2)(C)(iii) to read as follows:
