ALBANY INS. CO. v. ALMACENADORA SOMEX, S.A.

DeMOSS, Circuit Judge:

Background

On April 4, 1991, appellant Albany Insurance Company brought suit against (i) appellee Fernando Coello Garrido ("Coello"), (ii) appellees Alata Rica S.A. de C.V., Beneficio La Altura, S.A. de C.V., Beneficio San Fernando S.A. de C.V., Cafes Premier Y Altura, S.A. de C.V., and Commercializadora Mexicana de Cafe, S.A. de C.V. (collectively referred to as "Grupo Sanfer"), and (iii) appellee Almacenadora Somex, S.A. ("Somex") alleging several causes of action, including breach of contract, fraud and conversion. Albany alleged that it was the subrogee of Coffee Trade Services, Inc., ("CTS"). Albany's complaint further alleged the following:

Before answering, Somex filed on October 28, 1991, 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.

On March 17, 1992, 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. The court also denied as moot Somex's first motion to dismiss.

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.1

Albany appeals arguing, inter alia, that Appellees waived enforcement of the forum clauses by failing to raise them in their first Rule 12 motion. We agree.

Discussion

Fed.R.Civ.P. 12 reads in relevant part:

The meaning of subdivision (g) is clear. If a party seeks dismissal in a pretrial motion based on any of the defenses set out in Rule 12(b), he must include in such motion any other defense or objection then available which Rule 12 permits to be raised by motion. If the party omits such defense or objection, Rule 12(g) precludes him from making a further motion seeking dismissal based on the omitted defense or objection. The advisory committee notes following the text of Rule 12 explain the policy behind this consolidation requirement:

In this instance, Somex filed its first motion to dismiss in which it raised several of the defenses set out in Rule 12(b), including the defense of improper venue. Somex chose, however, not to lodge any specific objection to venue based on the forum clauses. Rather, it waited until its second motion to raise the forum clauses as grounds for dismissal. The district court construed Somex's second motion as a motion to dismiss for improper venue. We find the court's construal to be accurate.3 Thus, having failed to raise in its first motion a specific objection to venue based on the forum clauses, Somex was precluded under Rule 12(g) from raising the objection in a second pretrial motion to dismiss. Randolph Engineering Co. v. Fredenhagen Kommandit-Gesellschaft, 476 F.Supp. 1355, 1357-58 (W.D.Pa. 1979). The district court erred, therefore, when it granted Somex's second motion and dismissed Albany's suit.

The same conclusion follows for Coello and Grupo Sanfer. Coello and Grupo Sanfer each filed a motion to dismiss, alleging one or more of the defenses in Rule 12(b). Each, however, omitted from their first motion an objection to venue based on the forum clauses. Thus, according the consolidation requirement of Rule 12(g), they too were not permitted to make a further motion seeking enforcement of the forum clauses. Id. We therefore hold that the district court erred by enforcing the clauses and dismissing Albany's suit vis á vis Coello and Grupo Sanfer.

In an effort to avoid reversal, Somex takes the position that the district court dismissed Albany's case on forum non conveniens grounds. From this it argues that the consolidation requirement does not apply because Somex raised a forum non conveniens claim in its first motion to dismiss. In support of this position, Somex asserts that it raised the existence of the forum clauses in its second motion as a factor to be considered under its forum non conveniens claim of its first motion.

Somex's position has no basis in fact. The record very plainly reveals that Somex sought enforcement of the forum clauses as an independent ground for dismissal and that the district court denied as moot Somex's first motion to dismiss — the only motion in which Somex raised a forum non conveniens claim. Furthermore, the court's amended dismissal order never even mentions the doctrine of forum non conveniens; nor does it reflect that the court engaged in any type of forum non conveniens analysis.4

Coello and Grupo Sanfer argue that since their second motion was served within 20 days of service of their first motion, their second may be construed as a timely amendment of their first under Fed.R.Civ.P. 15(a). Therefore, they argue, Rule 12(g) does not apply. Rule 15(a) states in relevant part:

Appellees' argument raises the question of whether a motion to dismiss is a "pleading" under Rule 15(a). Professors Wright and Miller state that the term "pleading" "must be interpreted in conjunction with Rule 7(a), which enumerates the pleadings permitted in federal practice as follows: a complaint, an answer, a reply to a counter-claim, an answer to a cross-claim, a third-party complaint, a third-party answer, and, pursuant to court order, a reply to an answer or third-party answer." 6 Wright & Miller, Federal Practice & Procedure, § 1475 (1990). They further conclude that "[u]nder a literal application of Rule 15(a), ... motions are not `pleadings' and the amendment of a motion will not be permitted under subdivision (a)." Id. They cite several cases for this latter proposition, including McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872 n. 2 (5th Cir.1976), in which this court stated that "[a] motion to dismiss is not a responsive pleading for the purposes of Rule 15(a)."5

We agree with the position taken by our brothers in McLellan and hold that a motion to dismiss is not a "pleading" for the purposes of Rule 15(a). Thus, Coello and Grupo Sanfer's second motion cannot be considered an amendment of their first.

Conclusion

The district court's order dismissing Albany's action is REVERSED and the cause is REMANDED.6