Virginia Lawyers Weekly VA Lawyers Weekly
Where plaintiff argues that a defendant’s objection to venue was untimely because it was not made within 10 days of when plaintiff nonsuited the defendant whose presence created venue, the argument is not well-taken.
The relevant statute provides that objections must be made within 10 days of when the parties are “at issue.” The court finds that parties are “at issue” when an answer is filed to the complaint.
The objecting defendant challenged plaintiff’s venue choice within that period.
Background
This case arises from plaintiff’s workplace injury at a plant in Hanover County. In July 2018, plaintiff sued multiple defendants, including Structural Technologies (ST), which has a registered agent in the city of Richmond.
Plaintiff nonsuited ST on Nov. 2, 2020. In August 2020, before the nonsuit, RMC, another defendant, moved to quash service of the complaint for lack of personal jurisdiction. The motion was denied. RMC answered plaintiff’s complaint and lodged an objection to venue on Oct. 7, 2021.
“RMC argues that Plaintiffs contention that the Defendants conduct ‘substantial business’ in the City of Richmond is incorrect, and proper venue is where the accident occurred, which is Hanover County.”
Discussion
“Plaintiff argues that an objection to venue must have been brought within 10 days of the nonsuit of ST. See Virginia Code § 8.01-264(B) (‘In the event a party defendant whose presence created venue is dismissed after the parties are at issue, then the remaining parties defendant may object to venue within ten days[.]’) …
“RMC argues that the parties were not ‘at issue’ under Virginia Code§ 8.01-264(B) until RMC filed their answer on October 7, 2021 (in response to their motion to quash being denied).
“The Court agrees with RMC’s argument that the parties were not ‘at issue’ until October 7, 2021. While the term ‘at issue’ has not been defined in the context of Virginia Code § 8.01- 264(B), it has been defined in similar contexts where various Courts have held that the parties are not ‘at issue’ until an answer is filed. …
“Thus, RMC filed their objection to venue within 10 days of the parties being ‘at issue.’
“While there were various other arguments made by the parties regarding timeliness of the objection to venue, the decision above renders the remaining ‘timeliness’ arguments moot.”
The court sustains the objection to venue and transfers this matter to Hanover County.
Duenas v. Mitek, Inc., et al., Case No. CL 20-3007, Jan. 20, 2022, City of Richmond Circuit Court (Cardwell). VLW 022-8-003, 5 pp.
