Albany Ins. Co. v. Almacenadora Somex

In Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907 (1993), the Circuit Court of Appeals for the Fifth Circuit ruled under rule 12(h) that because Almacenadora Somex did not raise objections to the venue in his original pre-trial motion, he could not raise them in his second pre-trial motion.

On April 4, 1991, appellant Albany Insurance Company brought suit against appellees, alleging several causes of action, including breach of contract, fraud and conversion.

Somex filed a motion entitled "Motion to Dismiss for Lack of Personal Jurisdiction," under Fed.R.Civ.P. 12(b). In it, Somex sought dismissal for lack of personal jurisdiction, improper venue, failure to state a claim upon which relief can be granted, and forum non conveniens. Somex devoted the body of its motion to supporting its lack of personal jurisdiction and forum non conveniens arguments; it chose not to expound upon its improper venue claim beyond simply stating that venue was improper.

While its motion to dismiss was still pending, Somex filed a motion entitled "Motion for Summary Judgment." In it, Somex requested the court to enforce the forum selection clause contained in the warehouse receipts and dismiss the action without prejudice to refile in Mexico. On July 9, 1992, the district court granted Somex's "summary judgment" motion, construing it as a Rule 12(b) motion to dismiss, and dismissed Albany's entire case, including its actions against Coello and Grupo Sanfer.

On July 21, 1992, Coello and Grupo Sanfer each filed a Rule 12 motion which sought dismissal for lack of personal jurisdiction. They failed to raise, however, the forum clauses as grounds for dismissal. Two days later, Albany filed a motion requesting the court to correct its earlier dismissal order so as to allow Albany to maintain its action against Coello and Grupo Sanfer. On July 30, 1992, Coello and Grupo Sanfer filed another Rule 12 motion, this time asserting the forum clauses as an additional basis for dismissal.

Finally, on August 27, 1992, the district court, believing that Coello and Grupo Sanfer were now joined in Somex's "motion for summary judgment," entered an amended order granting the motion and dismissing Albany's case. The singular basis upon which the court granted the motion was enforcement of the forum clauses. In doing so, the court construed Somex's motion as a Rule 12(b)(3) motion to dismiss for improper venue. The court denied as moot Somex's, and presumably Coello and Grupo Sanfer's, earlier Rule 12 motion.

The case was appealed to the Circuit Court, which concluded, "The district court's order dismissing Albany's action is reversed and the cause is remanded." The Court affirmed the district court's decision to about Somex's objections to the venue, however, stating, "We find the court's construal to be accurate."