within this district, which defendants here do not contest. When co-conspirators have sufficient contacts with the forum, so that due process would not be violated, it is imputed against the "foreign" co-conspirators who allege that there is not sufficient contacts; co-conspirators are agents for each other. Arpet, Ltd. v. Homans, 390 F. Supp. 908 (W.D. Pa. 1975). See also my Memorandum and Order Nos. I & II in this action of June 27, 1985, 617 F. Supp. 300 and 617 F. Supp. 308. I have found that there are sufficient contacts by co-conspirators in this action with this forum so as not to offend due process, thus this court has jurisdiction over defendants here.
An appropriate order follows.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 635 F. Supp.]
AND NOW, this 11th day of July, 1985, for the reasons set forth in the foregoing Memorandum, it is ORDERED that defendants Thomas W. Tierney, and Tierney & Ernst's motion to dismiss for lack of personal jurisdiction is DENIED.
MEMORANDUM AND ORDER
Presently before this court is defendants, Carl E. Wright (Wright) and Wright, Herfordt & Sanders' (WHS), a partnership engaged in public accounting, motion for change of venue pursuant to 28 U.S.C. § 1404(a). Any allegation that venue is improper in this district has been waived by defendants here since they have failed to make a timely objection to venue. Rule 12(h)(1) of the Federal Rules of Civil Procedure states:
(1) A defense of . . . improper venue . . . is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading . . . .
Subdivision (g) of Rule 12 states in pertinent part:
If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted.
On February 11, 1985 defendants here made a motion to dismiss for lack of in personam jurisdiction, and requested dismissal of certain counts of the complaint for failure to state a claim. Thus, the proper time for an objection to venue would have been on February 11th.
Because defendants failed to make a proper objection to venue, in accord with Fed. R. Civ. P. 12(h)(1), supra, defendants here have waived any claim that venue is improper in this district. However, a waiver of an objection to venue does not preclude a later petitioning to the court for a change of venue for the convenience of certain litigants. James v. Norfolk and Western Railway, 430 F. Supp. 1317, 1319, n. 1 (S.D. Ohio 1976). Therefore, I will review the petition here solely as one made for the convenience of certain litigants rather than one alleging improper venue.
Defendants here have submitted an affidavit of defendant Wright, a partner of the accounting firm of WHS, also a defendant in this case. Wright avers that defendants here were not involved in any activities in Pennsylvania. Wright further avers that any documents which were forwarded by WHS to certain "General Partners" was done at the direction of WHS's client, Midwestern, the sellers of the securities, but that to the best knowledge of the affiant, no pro forma financial statements from defendants here were sent into Pennsylvania.
Plaintiffs have contested the motion to transfer and have submitted an affidavit of Howard Scherer, managing general partner of plaintiffs. Scherer avers that: he, in his capacity as general partner, has maintained an office in Philadelphia since August 1984; he has exchanged communications by telephone, mail, or meeting otherwise with defendants here. It is unclear to the court whether or not the general partner had an office within the Eastern District at the time of the communications, since the sales of securities which are the gravamen of the complaint took place prior to August, 1984. Scherer's affidavit merely states that plaintiffs' office has been at a certain address since August, 1984. Additionally, Scherer does aver that he received various pro forma financial statements in Philadelphia. Further Scherer avers that many of the witnesses who may be called by plaintiffs reside within the Eastern District of Pennsylvania. In light of the above and for those reasons I enunciated in my Memorandum and Order No. II of June 27, 1985 in this matter, defendants' motion for change of venue to Missouri must be denied. See Ethanol Partners Accredited v. Weiner, Zuckerbrot, Weiss & Brecher, No. 84-6408, slip op. at 5-7.
An appropriate order follows.
AND NOW, this 12th day of July, 1985, for the reasons set forth in the foregoing Memorandum, it is ORDERED that defendants Carl E. Wright and Wright, Herfordt & Sanders' motion for change of venue to the Western District of Missouri is DENIED.