Brief In Support Of Defendant’s Motion To Dismiss

On July 2, 2003, John John, the Plaintiff, resigned from his employment at the City of Weirton. Plaintiff declared that he experienced harassment from his colleagues and from the management while working at the City of Weirton. He cited several incidences such as a fellow employee pulling down his pants and shaking his buttocks at him and the frequent summons to the office of the manager for flimsy reasons such as the tardiness of another employee or another person’s absences or being written up for no valid reason at all.

As a result, he was forced to resign from employment. Plaintiff alleged that the conduct he experienced from his employer and from his colleagues forced him to resign from his employment even though that was against his will. He filed this suit for wrongful termination. Plaintiff filed this suit at the Brooke County Circuit Court.

Standard of Law

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Under Rule 12 (b) of the West Virginia Civil Rules of Procedure Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19.

Argument

a) The court should grant brief in support of motion to dismiss because the Brooke County Circuit Court is not the proper venue for this suit. The Supreme Court of Appeals of West Virginia has extensively answered the question of venue in a civil action in the United Bank, Inc. v. Blosser, No. 32691. Citing the § 56-1-1 of the W. Va. Code, the Supreme Court of Appeals of West Virginia stated that: “a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county: (1) Wherein any of the defendants may reside or the cause of action arose…

Well-settled is the rule in statutory construction that when a statute is clear and unambiguous then there is no room for its interpretation. Its plain meaning should be accepted and applied without the need for interpretation. In this case, the cause of action arose in the Hancock County where the City of Weirton is located. It is there where the act of wrongful termination was committed. There could be no other venue for this wrongful termination suit except in the Hancock County. Venue relates not to jurisdiction but to trial.

It touches convenience, not substance. However, the choice of venue for filing civil suits should not be left to the plaintiff’s whim and caprices. Facts such as judicial economy, proper administration of justice and the convenience of the parties must not be taken for granted since they are the reasons for which the rules of procedure and venue were formulated. In this case, since the City of Weirton is located at 200 Municipal Plaza, Weirton, West Virginia which is at Honcock County there could be no other venue except the Hancock County.

B) Court should grant brief in support of Motion to Dismiss because the motion to dismiss on the ground of improper venue was timely filed pursuant to the doctrine enunciated in the case of Higgins v. Alpha Burnett (01-801) The Supreme Court of Arkansas in the case of Brenda Higgins v. Alpha Burnett, et al, Opinion delivered June 6, 2002, discussed the importance of filing the defense of improper venue at the earliest opportunity. That case involved an action for fraud and conversion filed against two defendants residing in Lonoke County. The suit was filed in Faulkner County Circuit Court.

The defendants filed their answer which was generally in the nature of mere denials. They did not raise any affirmative defense of improper venue nor did they reserve the right to raise this defense. It was only after fourteen months that they filed their motion to dismiss raising as a defense improper venue. The trial court granted the motion and dismissed the suit. In reversing the trial court’s decision, the Supreme Court of Arkansas said that the defense of improper venue had been waived by the defendants when they failed to raise the same at the time they filed their responsive pleading.

“Because appellees did not raise their valid defense of improper venue in the answer, or by motion filed prior to or simultaneously with the answer, we hold that the defense was waived; therefore, the case is reversed and remanded…” Ordinarily, the rules of civil procedure must be liberally construed. However, the provisions on period within which to raise certain defenses are strictly applied as they are deemed indispensable to the prevention of needless delays and they are necessary to the speedy discharge of judicial business. In this case, the defendant has timely filed his defense of improper venue.

The motion to dismiss should therefore be granted.

Conclusion

For the foregoing reasons, defendant respectfully requests that this Court grants defendant’s motion to dismiss this suit for wrongful termination on the ground of improper venue. Following the W. Va. Code § 56-1-1, the suit shall be filed in the county where the defendant resides or where the cause of action arose which is Hancock County where the City of Weirton is situated.

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