*642 MEMORANDUM OPINION
In this intеrnational antitrust action, plaintiffs allege a conspiracy between and among various foreign manufacturers of extruded rubber thread and their distributors to fix prices of the thread in the United States. The underlying facts are set out in full in an earlier Memorandum Opinion in this matter.
See Dee-K Enterps., Inc. v. Heveafil Sdn. Bhd.,
The matter now before the Court is a motion by several defendants to dismiss for improper vеnue pursuant to Rule 12(b)(3), Fed.R.Civ.P. The facts pertinent to this motion may be succinctly stated. The named defendants fall into two groups: (i) Malaysian, Indonesian, and Thai
manufacturers
of extruded rubber thread, and (ii) the American
distributors
of the thread. None of these defendants is located in the Eastern District of Virginia. Moreover, no defendant transacts business in this District; defendant Consortium International Corp. (“Consortium”) has supplied thread to plaintiff Dee-K Enterprises, Inc. (“Dee-K”) in Virginia, but all of those transactions took place in the
Western
District of Virginia. Thus, certain defendants contend that venue is improper in this District. Several defendants also moved to dismiss this action for lack of personal jurisdiction and for failure to state a claim; these motions were denied by the earlier Memorandum Opinion. Left undecided by that Memorandum Opinion, however, was defendants’ motion to dismiss for improper venue.
See Dee-K,
I
The threshold question is whether the venue objection has been waived. Plaintiffs contend that each defendant either failed to raise an objection to venue in its first responsive pleading or Rule 12 motion, as required by Rule 12(h)(1), Fed.R.Civ.P., or waived its objection to venue by later asserting a counterclaim. Plaintiffs’ contention is correct as to all defendants but оne.
Plaintiffs filed their complaint on April 17, 1997. Nine defendants (the “Malaysian defendants”) filed their first Rule 12 motion on June 9,1997, and did not challenge venue in that pleading. Three of those defendants, namely Rubfil USA, Inc., Flexil Corp., and Filati Lastex Elastofibre USA, 'Inc., contend that they were not required to raise an improper-venue defense at that time because the defense was not “then available.” See Rules 12(g), (h), Fed.R.Civ.P. (providing that defense is waived only for objections “then available,” i.e., available at the time the first pleading was filed). These domestic defendants base their contention on the erroneous proposition that simply because the original complaint was sufficiently vague to warrant dismissal for lack of specificity, 1 it must also have been so vague as to obscure whatever basis for venue might have existed at that time. Thus, the domestic defendants argue they were not able to discern whether venue was proper in this District until plaintiffs filed their more specific, amended complaint and indicated precisely which of defendants’ acts constituted the alleged cоnspiracy. This argument amounts to the assertion that the domestic defendants could not, on their own, have known whether or not they conducted any business in this District such that venue here would be proper until plaintiffs identified specific alleged conduct in this District that they believed violated the antitrust laws.
This argument is unpersuasive. First, these domestic defendants certainly knew the scopе and details of their business activities, and thus they knew whether they resided, transacted business, or could be found in this District. See 28 U.S.C. § 1391 (setting forth criteria for proper venue). Therefore, they cannot now claim that they were unaware of a potential objection to ven *643 ue at the time the original complaint was filed. Had a venue objection then been available, they could and should have raised it at that time. 2 Second, and more important, because improper venue is an affirmative defense, allegations showing that venue is proper need not be included in the complaint. 3 It follows that the Malaysian defendants have waived any objection to venue they might have had.
Yet another defendant, PT Bakriе Rubber Industry, filed its first Rule 12 motion on June 17, 1997, and did not raise a venue objection therein. Thus, it too has waived any venue objection. Three more defendants, PT Perkebunan III (“Perkebunan”), Natural Rubber Thread Co., and Longtex Rubber Industries, are in default, and thus they have waived all venue objections.
See Hoffman v. Blaski,
Consortium, the last remaining defendant, by contrast did preserve its objection to venue, which it raised in response to both the first amended complaint and the second amended complaint.
5
Plaintiffs now assert, however, that because Consortium has filed a counterclaim in this action, it has waived its improper-venue defense. Plaintiffs’ argument has two flaws. First, though сourts in the past have split on the issue, “the trend in more recent cases is to hold that no Rule 12(b) defense is waived by the assertion of a counterclaim, whether permissive or compulsory.”
6
Charles A. Wright & Arthur R. Miller,
supra,
§ 1397, at 790;
see, e.g., Chase v. Pan-Pacific Broadcasting, Inc.,
Second, plaintiffs’ argument overlooks the undeniable fact that Consortium did indeed object to venue at its first opportunity. Were plaintiffs correct that the filing of a counterclaim in effect nullifies a defendant’s threshold venue objection, defendants such as Consortium would be caught in a Hobson’s choice: they might either file an answer and counterclaim as required by Rules 12 and 13, Fed.R.Civ.P., and forego the venue defense; or preserve the venue defense, but then find themsеlves either in default for not answering or forever foreclosed from asserting a compulsory counterclaim. Clearly the Federal Rules do not compel or contemplate such *644 a result. 9 In short, Consortium’s timely venue objection is not erased by the subsequent filing of a counterclaim.
II
The next task, then, is to evaluate Consortium’s venue objection to determine if venue is properly laid in this District.
As to the American defendants, venue is proper in
(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b) (stating the venue rules for federal-question еases). In the case at bar, neither (1) nor (2) applies; thus, venue is proper as to all the American defendants in any district where one of them may be found. 10
Dee-K,
Notwithstanding the earlier Memorandum Opinion’s holding that venue, if proper at all, would be proper under § 1391(b)(3), plaintiffs now argue that venue is proper under § 1391(b)(1). That section requires that all defendants reside in-state, and that at least one defendant reside in the forum district. To prove that the foreign defendants reside in Virginia, plaintiffs rely on § 1391(d), which allows foreign defendants to be sued in any district. Plaintiffs suggest that because the foreign producer-defendants are subject to suit in this District by virtue of § 1391(d), those defendants also reside in this District. This they do in the face of the Court’s earlier holding, reprinted here at footnote 10, that the fact that an alien can be sued in this District
does not
mean that it resides or can be found here.
See
As to four of the American distributor-defendants, plaintiffs do not attempt to show that they reside in Virginia. Instead, plaintiffs argue that these defendants are mere alter egos of their foreign producer-parents, and arе thus subject to suit here.
See, e.g., ABC Great States, Inc. v. Globe Ticket Co.,
*645 cordingly, residency must be established separately as to Consortium, or plaintiffs venue choice must fail.
Plaintiffs allege (and Consоrtium does not dispute) that Consortium made sales to Dee-K and others in the Western District of Virginia. Yet plaintiffs place more weight on this fact than it can bear when they make the rather puzzling statement that “[bjecause Consortium does business in the Western District of Virginia, it is ... deemed to reside there____Venue is therefore proper in the Eastern District of Virginia____” PL’s Mem. at 7. Not only is this a non sequitur, it is a position directly at odds with the language of § 1391(c). 13 Pursuant to that section, Consortium would be deemed to reside in the Western District of Virginia. That fact could form the basis for proper venue pursuant to § 1391(b)(3) in the Western District, “a judicial district in which [a] defendant may be found.” However, it does nothing to provide a basis for the conclusion that Consortium resides or can be found in the Eastern District.
Because they cannot establish that “all defendants reside in the same State,” and furthermore, because there is no evidence that any defendant resides in the Eastern District of Virginia, plaintiffs are foreclosed from relying on § 1391(b)(1) as a basis for proper venue. In addition, the earlier Memorandum Opinion established that § 1391(b)(2) is of no avail to plaintiffs,
see
Ill
When venue is improperly laid, the district court “shall dismiss, or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought .” 28 U.S.C. § 1406(a).
15
At the outset, it is worth noting that dismissal would be a proper remedy in this matter. When a plaintiff’s attorney reasonably should have foreseen that the forum in which he filed an action was improper, dismissal is warranted.
See Nichols v. G.D. Searle & Co.,
Notwithstanding the conclusion that dismissal would be proper, a transfer is more appropriate in the circumstances. This is so given the substantial proceedings that have already occurred in this ease, including, for example, initial discovery, entry of protective orders, briefing and resolution of Rule 12(b)(6) motions, and the filing of answers, counterclaims, and cross claims, and also given the accepted prinсiple that every litigant is entitled to its day in court. Consortium suggests that, in the absence of dismissal, the case be transferred to the Western District of Virginia. The Malaysian defendants, by contrast, ask that if the action is not dismissed, it be transferred to the Western District of North Carolina. Thus, it is necessary to evaluate and balance the contacts each of those forа has with this matter.
Dee-K and other potential class members are located in the Western District of Virginia. Furthermore, Dee-K has filed a bankruptcy action in that District.
17
Other facts, however, tip the scales decisively in favor of transfer to the Western District of North Carolina. First, plaintiff Asheboro Elastics Corp. and other potential class members are located in that District. Second, of the five U.S. defendants, three are located, or have their records, in or near Charlotte, which is in the Western District of North Carolina.
18
See Verosol B.V. v. Hunter Douglas, Inc.,
IV
For the reasons stated above, venue in this District is improper. In lieu of dismissal pursuant to Rule 12(b)(3), Fed.R.Civ.P., this action will be transferred to the Western District of North Carоlina, pursuant to 28 U.S.C. § 1406(a).
An appropriate Order will issue.
Notes
. By Order dated July 15, 1997, the complaint was dismissed without prejudice for failure to state a claim with the specificity and factual support required by
Estate Construction Co. v. Miller & Smith,
. Moreover, "[t]he filing of an amended complaint [does] not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to amendment .” 5A Charles Alаn Wright & Arthur R. Miller, Federal Practice and Procedure § 1388, at 736 (2d ed.1990).
.
See
Fed.R.Civ.P. Form 2 note 3;
Ripperger v. A.C. Allyn & Co.,
. Section 1391(d) provides that "[a]n alien may be sued in any district.”
. Consortium did not raise this defense in response to the original complaint because the motions to dismiss filed by other defendants were granted before Consortium's time in which to respond to the complaint had expired.
. The parties dispute whether Consortium's counterclaim is permissive or compulsory. Disposition of the instant motion, however, does not turn on resolution of that dispute.
See, e.g., Gates Learjet Corp. v. Jensen,
. In
Chase,
the D.C. Circuit held that a defendant may “state in an answer both a jurisdictional defense and a counterclaim.”
. Steinberg’s answer, like Consortium’s here, also contained a counterclaim.
. Of course, Consortium was not required to file an answer at all at the time it did so, given that its venue objection was still pending.
. "The fact that the foreign defendants can be sued in this district pursuant to 28 U.S.C. § 1391(d) does not mean that they can also be found in this district, thereby creating a basis for proper venue as to the domestic defendants pursuant to § 1391(b)(3). Were this not so, in a case involving foreign and domestic defendants, § 1391(d) could be used as to the foreign defendants to circumvent the requirements of § 1391(b) as to the domestic defendants. Neither the statute as a whole, nor sensible policy, permits such a result. When, as here, there are both foreign and domestic defendants, § 1391(b) must be satisfied as to the domestic defendants.”
. No determination is made here whether the subsidiaries are in fact mere alter egos of their parents. It is worth noting, however, that to the extent Virginia law would be instructive in this regard, Virginia courts apply a rather rigorous test for deciding when to disregard a corporation's separate identity.
See, e.g., Perpetual Real Estate Servs., Inc. v. Michaelson Properties, Inc.,
.Plaintiffs allege in their memorandum addressing venue that four of the American defendants are alter egos of foreign producers, but they conspicuously do not make that claim with respect to Consortium. Instead, they unsuccessfully attempt to show that Consortium actually resides in this District.
. That section provides:
In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that Slate within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State....
. In any event, the preceding discussion demonstrates that § 1391(b)(3) cannot provide the basis for venue, for that section, too, requires that at least one defendant be found in the forum district. And no defendant is found in the Eastern District of Virginia.
. Although no party has actually moved for transfer or dismissal pursuant to § 1406 (or its corollary, § 1404, which provides for transfer when venue is properly laid), defendants’ and plaintiffs’ memoranda cite and discuss those statutes. Transfer under § 1406 is accordingly, and properly, considered here.
.
See, e.g., Rock Bit Int’l, Inc. v. Smith Int'l, Inc.,
. See In re Dee-K Enterprises, Inc., No. 96-02935-RKR- 11 (Bankr.W.D.Va. Med Sept. 9, 1996).
. The other two domestic defendants are located in Rhode Island and Texas.