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HILLIS v. HEINEMAN

No. 09-17040.

626 F.3d 1014 (2010)

Steve HILLIS, husband; Diane Hillis, wife, Plaintiffs-Appellants, v. Barbara L. HEINEMAN, wife/Trustee of the Year 2002 Revocable Trust Dated August 16, 2002; Ronald E. Heineman, husband; Gregory Bartko; Persons 1-10, Defendants-Appellees, v. John Raymond Fox, Third-party-defendant.

United States Court of Appeals, Ninth Circuit.

Filed November 19, 2010.

Attorney(s) appearing for the Case

Harry N. Stone , The Stone Law Firm, Phoenix, AZ, for plaintiffs-appellants Steve Hillis and Diane Hillis.

Gregory Bartko , Law Office of Gregory Bartko, LLC, Atlanta, GA, for defendants-appellees Ronald Heineman and Barbara Heineman; Barbara Heineman, Trustee of the Year 2002 Revocable Trust Dated August 16, 2002; and Gregory Bartko.

Before: RONALD M. GOULD, SANDRA S. IKUTA, Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.

OPINION

GOULD, Circuit Judge:

We must decide whether a defendant who files a counterclaim or a third-party complaint waives the asserted defense of improper venue under Federal Rule of Civil Procedure 12(b)(3). We hold that filing a counterclaim or a third-party complaint does not waive the defense of improper venue.

I

In 2006, Steve and Diane Hillis were solicited by John Fox, who had been retained by Resolve Staffing to sell securities...

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