Brief In Support Of Defendant’s Motion To Dismiss

On July 2, twain hundred3, John John, the complainant, resigned from his employment at the City of Weirton. Plaintiff decl ard that he experienced harassment from his colleagues and from the management while operative at the City of Weirton. He cited several incidences such as a fellow employee pulling down his pants and shaking his buttocks at him and the frequent summons to the office of the manager for flimsy reasons such as the tardiness of an opposite employee or anformer(a) persons absences or existence written up for no valid reason at all.As a result, he was forced to resign from employment. Plaintiff alleged that the conduct he experienced from his employer and from his colleagues forced him to resign from his employment even though that was against his will. He filed this fit out for outlaw(a) termination. Plaintiff filed this suit at the Brooke County Circuit Court. II. beat of LawUnder Rule 12 (b) of the West Virginia Civil Rules of Procedure Every acknowledgmen t, in law or fact, to a claim for stand-in in any(prenominal) pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading on that pointto if one is required, except that the following defence forces may at the filling of the pleader be made by relocation (1) lack of legal power over the subject matter, (2) lack of jurisdiction over the person, (3) wrong locale, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party below Rule 19.III. Argument a) The court should grant brief in animation of motion to dismiss because the Brooke County Circuit Court is not the proper locale for this suit. The tyrannical Court of Appeals of West Virginia has extensively answered the question of venue in a civil action in the United Bank, Inc. v. Blosser, No. 32691. Citing the 56-1-1 of the W. Va. Code, the Supreme Court of A ppeals of West Virginia stated that a) Any civil action or other proceeding, except where it is otherwise specially provided, may here aft(prenominal) be brought in the circuit court of any county (1) Wherein any of the defendants may tarry or the cause of action aroseWell-settled is the rule in statutory tress that when a statute is clear and unambiguous then there is no room for its interpretation. Its plain meaning should be accepted and applied without the subscribe to for interpretation. In this study, the cause of action arose in the autograph County where the City of Weirton is located. It is there where the act of wrongful termination was committed. There could be no other venue for this wrongful termination suit except in the autograph County. Venue relates not to jurisdiction but to trial.It touches convenience, not substance. However, the choice of venue for filing civil suits should not be left to the plaintiffs whim and caprices. Facts such as judicial economy, prop er administration of jurist and the convenience of the parties must not be taken for granted since they are the reasons for which the rules of military operation and venue were formulated. In this case, since the City of Weirton is located at 200 Municipal Plaza, Weirton, West Virginia which is at Honcock County there could be no other venue except the Hancock County.B) Court should grant brief in support of Motion to cast out because the motion to dismiss on the priming coat of improper venue was timely filed pursuant to the doctrine enunciated in the case of Higgins v. alpha Burnett (01-801) The Supreme Court of Arkansas in the case of Brenda Higgins v. Alpha Burnett, et al, Opinion delivered June 6, 2002, discussed the importance of filing the defense of improper venue at the earliest opportunity. That case involved an action for fraud and conversion filed against two defendants residing in Lonoke County. The suit was filed in Faulkner County Circuit Court.The defendants filed their answer which was generally in the nature of mere denials. They did not raise any affirmative defense of improper venue nor did they reserve the right to raise this defense. It was only after fourteen months that they filed their motion to dismiss raising as a defense improper venue. The trial court granted the motion and dismissed the suit. In reversing the trial courts decision, the Supreme Court of Arkansas say that the defense of improper venue had been waived by the defendants when they failed to raise the same at the time they filed their responsive pleading.Because appellees did not raise their valid defense of improper venue in the answer, or by motion filed prior to or simultaneously with the answer, we hold that the defense was waived therefore, the case is reversed and remanded Ordinarily, the rules of civil procedure must be liberally construed. However, the provisions on period in spite of appearance which to raise certain defenses are strictly applied as they a re deemed indispensable to the prevention of needless delays and they are necessary to the speedy dismiss of judicial business. In this case, the defendant has timely filed his defense of improper venue.The motion to dismiss should therefore be granted. IV. Conclusion For the foregoing reasons, defendant respectfully requests that this Court grants defendants motion to dismiss this suit for wrongful termination on the ground of improper venue. Following the W. Va. Code 56-1-1, the suit shall be filed in the county where the defendant resides or where the cause of action arose which is Hancock County where the City of Weirton is situated. CERTIFICATE OF SERVICE I hereby certify that the supra Brief In Support of Defendants Motion to Dismiss was served upon the Plaintiff on August , 200 by mailing a true copy by certified mail to