95 N.E.3d 194
Ind. Ct. App.2018Background
- Columbia Street Partners sued CenterPoint and Honeywell in Warrick County state court for environmental contamination of property in Evansville.
- Defendants received extensions to answer; CenterPoint warned it might move to transfer venue to Vanderburgh County (a preferred venue under T.R. 75).
- Before CenterPoint filed a responsive pleading, Honeywell removed the case to federal court with CenterPoint’s alleged consent; CenterPoint filed only an answer in federal court as required.
- The federal court remanded the case to state court for lack of diversity; Columbia moved for attorney fees against Honeywell for unreasonable removal.
- Two days after remand, CenterPoint moved in state court to transfer the case to the preferred venue (Vanderburgh). Columbia opposed, arguing CenterPoint waived the venue defense by consenting to removal and delaying its motion.
- The trial court denied transfer, finding CenterPoint waived its right to seek preferred venue; CenterPoint appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CenterPoint waived its right to seek transfer to a preferred venue by consenting to removal and delaying a T.R. 75 motion | CenterPoint’s conduct consenting to removal and not moving earlier showed intent and forfeiture of venue objection; waiver is appropriate as sanction for litigation misconduct | Removal tolled timing for asserting improper venue; CenterPoint made the first proper T.R. 12/75 motion after remand, so the defense was not waived | Reversed: waiver not shown. Removal suspended state timing; CenterPoint timely moved after remand and was entitled to transfer under T.R. 12 and 75 |
Key Cases Cited
- Am. Family Ins. Co. v. Ford Motor Co., 857 N.E.2d 971 (Ind. 2006) (transfer to preferred venue mandatory when movant properly files T.R. 12(B)(3) motion)
- Salsbery Pork Producers, Inc. v. Booth, 967 N.E.2d 1 (Ind. Ct. App. 2012) (multiple preferred venues may exist; no priority among subsections of T.R. 75)
- City of Carmel ex rel. Redevelopment Comm’n v. Crider & Crider, Inc., 988 N.E.2d 808 (Ind. Ct. App. 2013) (improper venue must be raised in a responsive pleading or by timely motion)
- Peoples Trust & Sav. Bank v. Humphrey, 451 N.E.2d 1104 (Ind. Ct. App. 1983) (time limits for venue motions tolled during removal to federal court)