M E M O
TO: Joint Procedure Committee
FROM: Jim Harris
RE: N.D.R.Civ.P. 12; Objection to Improper Venue
The Committee has a request from Dan Traynor to consider whether a time limitation for an objection to improper venue should be included in N.D.R.Civ.P. 12(b).
Unlike Fed.R.Civ.P. 12(b), current N.D.R.Civ.P. 12(b) does not include "improper venue" as a defense which may be made by motion, and if made by motion, must be made before a responsive pleading. The explanatory note to N.D.R.Civ.P. 12(b) says "improper venue is deleted from the enumerated defenses because matters of venue are controlled by N.D.C.C. Chapter 28-04." As the Committee is aware, the 1997 Legislature repealed N.D.C.C. § 28-04-06, which provided "if the county designated in the complaint is not the proper county for trial of the case, the action, notwithstanding, may be tried therein, unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county and the place of trial thereupon is changed by the consent of the parties, or by order of the court." As Mr. Traynor's letter explains, the 1997 Legislature did not reenact a similar time limitation for a defendant to object to improper venue.
The materials include a proposed N.D.R.Civ.P. 12, tracking the federal rule.