Response to Motion to Change Venue

Note: This sample venue motion was filed in a personal injury case we were able to keep Baltimore City instead of Anne Arundel County. The case ultimately settled for $750,000.

The venue of a personal injury case involves considerations of whether a claim has been instituted in the correct city or county.Keep in mind that tort claim must be brought where the negligence occurs or in the in the county or city where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. MD. CODE ANN., CTS.&JUD. PROC. II § 6-201(a).

Thoughts for 2018You should also read our 2016 updated venue motion in Maryland here.  You will also want to read UMMS v. Kerrigan, a 2017 case that the dissenting opinion says undermines “the long-held recognition of a plaintiff’s right to choose a venue.” Maryland law now, regrettably, gives less deference to the plaintiff choice of venue if the plaintiff is not a resident of the jurisdiction where the complaint is brought.

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

AMY WHITE,
Plaintiff

v

BOBO HARMON, et al,
Defendants

CASE NO.: 05-C-06-6511

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS/CHANGE VENUE

Plaintiff, Amy White, by and through her attorneys, Ronald V. Miller, Jr., Laura G. Zois, and Miller & Zois, LLC, requests that Defendants Bobo Harmon and Jack F. Harmon’s (“at-fault Defendants”) Motion to Dismiss be denied because (1) defendants have waived their right to dismiss by filing an answer according to Maryland Rule 2-322(a), (2) State Farm habitually conducts business in Baltimore City, and (3) because the at-fault Defendants’ affidavits are unsupported by any factual averments. In further support, Plaintiff states as follows:

1. Plaintiff is a resident of Baltimore City.
2. Maryland Rule 2-322(a) states that a motion to dismiss for improper venue must be made before defendant files an answer. Defendants have already answered Plaintiff’s complaint and, in fact, have already served discovery on Plaintiff. If an answer has already been file, according to 2-322(a), the defense is waived. Accordingly, Defendants have waived their right to contest venue.
3. Plaintiff’s Amended Complaint names State Farm as a defendant. Plaintiff’s insurance policy with State Farm provides $250,000.00 in uninsured motorist coverage. Plaintiff has over $23,000.00 in medical bills and counting (she recently underwent surgery for her herniated discs from the accident). Plaintiff does not know the amount of the at-fault Defendants’ policy but was told by the State Farm adjuster that the underlying policy “is not big enough” to adequately compensate her for her injuries.
4. Maryland Rule 2-327(c) states that: The Convenience of the Parties and Witnesses. — On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. Subject to the provisions of §§6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the Defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. In addition, a corporation also may be sued where it maintains it principal offices in the state. Md. Code (1974, 2004 Repl. Vol.), §6-201. There is no question that Defendant State Farm does business in Baltimore City.
5. Proper regard for the plaintiff’s choice of forum is the reason why “a motion to transfer [from the forum chosen by the plaintiff] should be granted only when the balance weighs strongly in favor of the moving party. Urquhart v. Simmons, 339 Md. 1, 18 n.7, 660 A.2d 412, 420 n.7 (1995). Commentators on Rule 2-327(c) have recognized that “due consideration must . . . be given to the plaintiff’s selection of forum. . . .” P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 215-16 (2d ed. 1992) (Niemeyer & Schuett).
6. To meet the burden of proving improper venue, the defendant must do more than merely raise a ‘bare allegation that venue was improper, unsupported by affidavit or evidence.'” See Lambros v. Gelb & Gelb, 153 Md. App. 447, 452 (2003) (emphasis added) (citation omitted). In this case, two of the defendants have offered cursory affidavits containing no facts, merely a legal conclusion that they do not conduct business in Baltimore City. That affidavits state only the bald legal conclusion that the at-fault Defendants did not “at the time this action was brought, or at anytime thereafter reside in or carry on any business in, or habitually engage in any avocation or employment in Baltimore City, as required by this type of action.” In other words, Defendants are not only making legal conclusions in the absence of facts, they are actually averring to the appropriate conclusion, assuming the role of judge, using the language “as required by this type of action.” Clearly, such an affidavit should not be considered. See Shipp v. Bevard, 291 Md. 590, 595 (1981); Wyand v. Patterson Agency, Inc., 266 Md. 466, 460 (1972).

According, because Defendant have waived their right to oppose venue, because State Farm is doing business in Baltimore and is a defendant in this case, and because Defendants affidavits are without any factual predicate, Plaintiff requests that Defendants’ motion be denied. In the alternative, Plaintiff request sixty (60) days for the opportunity to conduct venue discovery.

Respectfully submitted, Miller & Zois, LLC

Ronald V. Miller, Jr.
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (fax)
Attorneys for the Plaintiff

Certificate of Service

I hereby certify that the foregoing Opposition to Motion to Dismiss was sent via U.S. Mail, first-class, postage prepaid, this 18th day of July, 2013, to:

Kyle Blakeley, Esquire
H. Barritt Peterson, Jr.,&Associates
One West Pennsylvania Avenue
Suite 500
Towson, Maryland 21204-5025
Attorney for Defendants Harmon

State Farm Insurance Company
Attn: Owings Mills Auto Claims
P. O. Box 953
Frederick, Maryland 21706

Ronald V. Miller, Jr.

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

AMY WHITE,
Plaintiff

v

BOBO HARMON, et al,
Defendants

CASE NO.: 05-C-06-6511

ORDER

Having fully read and considered the Defendants, Bobo Harmon and Jack Harmon’s, Motion to Dismiss, it is this day of ________________ of __________________, 2013, by the Circuit Court of Baltimore City, Maryland; ORDERED, that the Defendant’s Motion be DENIED.

JUDGE

COPIES TO:

Ronald V. Miller, Jr., Esquire
Laura G. Zois, Esquire
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Attorneys for Plaintiff

H. Barritt Peterson, Jr.,&Associates
One West Pennsylvania Avenue
Suite 500
Towson, Maryland 21204-5025
Attorney for Defendants Harmon

More on Venue

• Sample Motions: more sample motions
• How lawyer consider what is the appropriate venue
• Venue in Maryland: analysis of different counties in Maryland for the purpose of venue
• Federal court diversity: games defense lawyers play to defeat diversity