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Continental Computer Co. v. Kagenski

November 7, 2005

CONTINENTAL COMPUTER COMPANY PLAINTIFF
v.
ROBERT KAGENSKI, REVENALDO "CHITO" MARTINEZ, AND ROBERT "ROBBIE" MARTINEZ DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

Defendant Reyenaldo "Chito" Martinez ("Martinez") has filed a motion to dismiss (docket entry #56), and Defendants have filed a response (docket entry #57). After careful consideration, and for the reasons that follow, the motion will be denied.

Defendant Martinez, who proceeds pro se, moves for dismissal based on improper venue. Under Federal Rule of Civil Procedure 12(b)(3), the defense of improper venue must be raised either by a pre-answer motion to dismiss or in a responsive pleading. Martinez answered the complaint on August 2, 2005, and he failed to include an objection to venue in that pleading. Accordingly, Martinez has waived his objection to venue, and his motion to dismiss must be denied. See Fed. R. Civ. P 12(h)(1).

Martinez states that Plaintiff has failed to provide him a computation of damages as required under Fed. R. Civ. P. 26(a)(1)(C). Although the Court finds this allegation insufficient to warrant dismissal, Plaintiff is directed to provide Plaintiff disclosures required under Rule 26.

If Plaintiff fails to do so, Martinez may file a motion to compel.

IT IS SO ORDERED.

20051107

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