Alabama Rules of Civil Procedure

Alabama Rules of Civil Procedure

XI. GENERAL PROVISIONS

Rule 82.

Jurisdiction and venue.

(a)

Jurisdiction unaffected. These rules shall not be construed to extend

or limit the jurisdiction of the courts of Alabama.

(b)

Venue of actions. Venue of actions shall not be affected by these

rules except as the statute for venue for actions against individuals at law (§ 6-32(a)) and the statute for venue for actions against individuals in equity (§ 6-3-2(b))

are inconsistent. Such inconsistencies are resolved as follows:

(1)

AGAINST RESIDENT INDIVIDUALS. Actions against an individual or

individuals having a permanent residence in this state:

(A)

Must be brought in the county where the defendant or any

material defendant resides at the commencement of the action, except that

if the action is a personal action other than an action on a contract, it may

be brought either in the county where the act or omission complained of

occurred, or in the county of the permanent residence of the defendant or

one of them;

(B)

Must, if the subject matter of the action is real estate, whether

or not exclusively, or if it is for recovery or the possession thereof or trespass

thereto, be brought in the county where the real estate or a material portion

thereof is situated.

(2)

AGAINST NONRESIDENT INDIVIDUALS. Actions against nonresident

individuals may be brought in any county of the state where such nonresident is

found, or in the county where the subject of the action or portion of the same was

when the claim for relief arose or the act on which the action is founded occurred

or was to be performed.

(3)

GENERAL PROVISIONS. An action may be brought in any county other

than as provided in this subdivision when a statute so provides.

(c) Venue where claim or parties joined. Where several claims or

parties have been joined, the suit may be brought in any county in which any

one of the claims could properly have been brought. Whenever an action has

been commenced in a proper county, additional claims and parties may be

joined, pursuant to Rules 13, 14, 22, and 24, as ancillary thereto, without

regard to whether that county would be a proper venue for an independent

action on such claims or against such parties.

(d) Improper venue.

(1)

AS OF THE COMMENCEMENT OF THE ACTION. When an action is

commenced laying venue in the wrong county, the court, on timely motion of any

defendant, shall transfer the action to the court in which the action might have been

properly filed and the case shall proceed as though originally filed therein.

(2)

AFTER COMMENCEMENT OF THE ACTION.

(A)

Voluntary Dismissal. When a defendant whose presence

made venue proper as to the entire action at the time of the commencement

of the action is subsequently dismissed on notice or motion of the plaintiff,

the court, on motion of less than all remaining defendants, in its discretion,

may, and on motion of all remaining defendants, shall transfer the action to

a court in which the action might have been properly filed had it been initially

brought against the remaining defendants alone; provided, however, in the

event that a pro tanto settlement between the plaintiff and a defendant is

the basis for the dismissal of that defendant, the action shall not be

transferred unless the court, in its discretion, has determined that the

primary purpose of the pro tanto settlement was an attempt to defeat the

right to transfer that would have otherwise existed had there been a

dismissal of that defendant without such settlement.

(B)

Involuntary Dismissal. When a defendant whose presence

made venue proper as to the entire action at the time of the commencement

of the action is subsequently dismissed on motion of that defendant, and

such dismissal has been made a final judgment as to that defendant

pursuant to Rule 54(b), the court, on motion of less than all remaining

defendants, may, in its discretion, and, on motion of all remaining

defendants, shall transfer the action to a court in which the action might

have been properly filed had it been initially brought against the remaining

defendants alone, provided that any such motion is served prior to

commencement of trial and after said order of dismissal has become final

by appeal or expiration of time for appeal.

(C)

Timeliness of Motion.

(i)

Voluntary dismissal. A motion to transfer after voluntary

dismissal of a party shall be served as soon as practicable if the

action has been set for trial within less than thirty (30) days of the

dismissal or if the trial of the action has commenced; and, in all other

instances, within thirty (30) days after the plaintiff serves a notice of

the voluntary dismissal on all other parties and files a copy of the

notice with the clerk.

(ii)

Involuntary dismissal. A motion to transfer after

involuntary dismissal of a party shall be served, in all events, prior to

the commencement of trial, and as soon as practicable if the action

has been set for trial within less than thirty (30) days of the finality by

appeal or expiration of the time for appeal of the order of dismissal;

and, in all other instances, within thirty (30) days after the plaintiff

serves on all other parties a notice of the finality of the order of

dismissal and files a copy of the notice with the clerk.

(iii)

Waiver. A defense of improper venue under this rule is

waived if a motion to transfer is not served within the time limits of

subsections (d)(2)(c)(i)-(ii) of this rule.

(3)

PROCEDURE ON TRANSFER. In the event the venue of the action is or

has become improper and venue is appropriate in more than one other court, a

defendant sued alone or multiple defendants, by unanimous agreement, shall have

the right to select such other court to which the action shall be transferred and,

where there are multiple defendants who are unable to agree upon a transferee

court, the court may transfer the action to any such other court. Transfer of the

action and notice thereof shall be in accord with § 6-3-22, Code of Alabama 1975.

Alternatively, the clerk may electronically transfer the case file, including the docket

sheet, together with all orders, pleadings, motions, or other papers in the action

through the State Judicial System's e-filing system. The clerk of the court to which

the action has been transferred shall provide notice of the transfer to all parties of

record as provided in the Alabama Rules of Civil Procedure.

(4)

FICTITIOUS PARTIES. No defendant still designated as a fictitious party

pursuant to Rule 9(h) 75 days after the filing of a motion to transfer shall be

considered for the purpose of deciding the correct venue of the action.

(dc) District court rule. Rule 82 applies in the district courts, except that 1) it

is limited by § 4-107 of the Judicial Article Implementation Act (Act 1205, 1975

Ala.Acts; § 12-12-36, Code of Alabama 1975) and 2) the reference in (c) to Rule

14 is omitted so that (c) will be unavailable in third-party actions in the district court.

[Amended 1-4-82, eff. 3-1-82; Amended 5-16-83, eff. 7-1-83; Amended 1-6-87, eff.

9-1-87; Amended eff. 10-1-95; Amended 12-6-2012, eff. 1-1-2013.]

Committee Comments on 1973 Adoption

Subdivision (a). These rules are not intended to alter in any way the

jurisdiction of Alabama courts. The subdivision sets out a rule of construction to

ensure that they will not be held to have made any change in jurisdictional

requirements.

Subdivision (b). It is not possible to preserve unchanged existing Alabama

law as to venue. The general venue statute dealing with actions at law, Code 1940,

Tit. 7, § 54, differs from the venue statute covering suits in equity, Code 1940, Tit.

7, § 294. [See now, Code of Ala., § 6-3-2, which combined and modified former Tit.

7, §§ 54 and 294.] Since law and equity are merged by these rules, it is necessary

to provide one rule as to venue which will resolve such differences. This subdivision

is intended to have that effect. The two statutes have been reconciled, and the

more liberal provision as to venue in any particular situation has been incorporated

into this rule. Of course, this Rule 82(b) applies only to individuals, not corporations

or other entities unless multiple claims against parties are involved. See Rule 82(c).

Subdivision (b)(1). The provision of clause (A), allowing suit in the county

where a defendant resides, is common to both the law and equity venue statutes.

The “material defendant” language has been incorporated from the equity statute

to prevent a plaintiff from joining a nominal defendant for the express purpose of

shifting the venue of the action. A “material defendant” has been defined as

meaning “one against whom some relief is sought.” Wilson v. Wilson, 246 Ala. 346,

20 So.2d 452 (1945).

Clause (A), allowing actions, other than those on a contract, to be brought

in the county where the claim arose, adopts the broader law provision rather than

the restrictive equity provision. The law provision seems preferable because in tort

cases the county where the claim arose will frequently be most convenient for

witnesses, for a view by the jurors, etc. There is less necessity for allowing an

alternate venue in contract actions, and the general policy of Alabama legislation

has been to make a defendant subject to suit only in the county where he resides,

except where there is a good reason why he should be sued elsewhere. Ashurst

v. Gibson, 57 Ala. 584 (1877).

Clause (B) incorporates provisions of both venue statutes as they apply to

specific actions involving land.

Subdivision (b)(2). This states the rule heretofore followed in actions at law,

that a suit against a nonresident may be brought in any county where he is found

and served with process, or where he enters an appearance. Steen v. Swadley,

126 Ala. 616, 28 So. 620 (1900); Jefferson County Savings Bank v. Carland, 195

Ala. 279, 71 So. 126 (1916); Conner v. Willet, 265 Ala. 319, 91 So.2d 225 (1956).

This subdivision has no application to suits against foreign corporations, as to

which venue will continue to be governed by Code 1940, Tit. 7, § 60.

Subdivision (b)(3). This subdivision preserves existing venue statutes, other

than the general law and equity venue statutes, Code 1940, Tit. 7, §§ 54, 294, [see

Code of Ala., § 6-3-2], and permits suit in any county, other than as provided in

Rule 82(b), where a statute so provides.

Subdivision (c). These rules provide for a more liberal joinder of claims and

of parties than has hitherto been possible in Alabama. These joinder provisions will

be greatly restricted if venue must be proper as to every claim and every party

which is joined, and authorization of liberalized joinder having been contemplated

by the enabling act, such restriction is not considered to have been intended by

the legislature. The correct principle seems to be that once venue is properly laid,

other claims and parties may be joined as ancillary to the original action regardless

of venue requirements. Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d

Cir.1914); Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147 (5th

Cir.1954); Lacewell v. Griffin, 214 Ark. 909, 219 S.W.2d 227 (1949); 3 Moore’s

Federal Practice, § 14.28(2) (2d ed.1948); 1 Barron & Holtzoff, Federal Practice

and Procedure, § 424 (1950); Wright’s Minnesota Rules 24 (1956 Cum.Supp.). But

cf. Tex.R.C.P. 38; Union Bus Lines v. Byrd, 178 S.W.2d 544 (Tex.Civ.App.1943),

certified questions answered 142 Tex. 257, 177 S.W.2d 774. Since the ancillary

concept is somewhat “amorphous”, subdivision (c) has been added to clarify its

application to venue requirements.

It should be noted that subdivision (c) cannot be applied in a suit against a

foreign corporation so as to violate the constitution. Const.1901, § 232, providing

that a foreign corporation may be sued in any county in which it does business,

has been held to be mandatory and restrictive, and not merely permissive. May

v. Strickland, 235 Ala. 482, 180 So. 93 (1938). And this has been interpreted to

mean that where a foreign corporation and another defendant are sued together,

suit in a county where the foreign corporation does not do business is improper,

even though the county was a proper venue as to the other defendant. Alabama

Warehousing Company v. Hyatt, 26 Ala.App. 117, 154 So. 313 (1934). Rule

82(c) cannot alter this holding. But in a similar situation, the rule will permit suit to

be brought in a county where the foreign corporation does business even though

that county would not have been a proper venue as to other parties which are not

foreign corporations. Severance and transfer may be necessary with respect to the

addition of a foreign corporation as a party pursuant to the second sentence.

Subdivision (d). Dismissal of an action because venue is improper, when

there is some other county in the state where venue would be proper, is a wasteful

procedure, resulting only in delay and expense. This subdivision provides that the

court where the action was brought must transfer the action to the proper county.

The subdivision is based on Tit. 7, § 64(1) which calls for similar action upon

successful attack on venue.

It should be noted that subdivision (d) has nothing to do with the doctrine of

forum non conveniens. Rule 82(d) applies only where the original venue was not

proper.

Committee Comments to the Amendment Effective March 1, 1982

The revision of Rule 82(d) arises from dissatisfaction with the rules’ failure

to treat the problem of transfer of venue except in the context of defective venue

as of the commencement of the action. The Committee has concluded that it lacks

any authority to make a recommendation which would lead to a change in the

venue laws as they relate to the proper forum in which to commence an action.

The Committee further has substantial reservations about its involvement in a

proposal to create a transfer of venue simply for convenience of parties and

witnesses. However, the Committee did see a legitimate avenue of needed reform

in connection with provision for transfers of venue in a context where venue was

appropriate at the time of the commencement of the action, but subsequent

developments have caused the party whose presence made venue appropriate to

be dismissed from the proceeding. It is within that narrow area that the revision to

Rule 82 functions.

The rule is drawn so as to permit transfer in the event the plaintiff entered

into a voluntary dismissal of the defendant or defendants whose presence made

venue proper in the court in which the action was filed. Such transfer could occur

at any time, even during trial, except when the dismissal is a part of a bona fide

pro tanto settlement.

The revision also contemplates the transfer of the action when there has

been an involuntary dismissal of the defendant whose presence made venue

appropriate as of the commencement of the action. However, such transfer cannot

occur unless the order of dismissal has become final either by appeal or the

expiration of the time for the taking of an appeal. Consequently, the granting of a

motion for directed verdict during trial would not give rise to the basis for a transfer

under Rule 82(d)(2)(B).

The revision treats the procedure for selection of the forum to which an

action should be transferred. The transferee forum should be one in which the

venue is appropriate. If the defendants are unable to agree unanimously on an

appropriate transferee forum, then the court, in its discretion, may make a

designation of the transferee court in which venue is appropriate. Note that it is not

necessary in a transfer after a dismissal of the defendant whose presence made

venue appropriate as of the commencement of the action, for all defendants to join

in the motion. The court may, in its discretion, transfer the action even over the

objection of some of the defendants.

So as to eliminate any potential for abuse by reason of undue delay in

seeking a transfer which becomes available under Rule 82(d)(2), certain time limits

in which action must be taken are prescribed by Rule 82(d)(2)(c). Where the basis

for transfer arises from a voluntary dismissal by the plaintiff, Rule 82(d)(2)(A), a

thirty-day time limit applies unless the trial of the case is less than thirty days away

or the trial of a case has in fact commenced and, in those contexts, the motion

must be made as soon as practicable. Where the basis for transfer becomes

available upon an involuntary dismissal, Rule 82(d)(2)(B), a thirty-day time limit

applies from the date that the right to transfer becomes available unless the trial of

the case is less than thirty days away and, in that context, the motion must be

made as soon as practicable. Rule 82(d)(2)(B) requires that such motion must be

served prior to the commencement of trial and, consequently, a motion to transfer

which is served after that point cannot, by the express terms of the foregoing

provision of Rule 82(d)(2)(B), be treated as having been filed “as soon as

practicable.” Thus, should the requisite time for finality of an involuntary dismissal

fall subsequent to the date upon which the case is set for trial, a motion to transfer

would be unavailable.

Committee Comments to Rule 82(d)(2)(c) as Amended Effective September

1, 1987

Prior to this amendment, the time requirements contained in these

subsections were triggered by the order of dismissal. Experience proved that such

orders in some circuits were not forwarded to all parties in the action.

Consequently, the committee determined that this amendment was in order so that

all parties might receive timely notice of the dismissal of a defendant and so that

the time for seeking a change of venue might be triggered by the filing of such a

formal notice. This is a procedure similar to the procedure employed under Rule

25 dealing with substitution following the death of a party. Under the amended rule,

a motion for transfer may also be filed following the dismissal of a defendant even

though a notice of dismissal has not yet been filed by the plaintiff.

Committee Comments to Rule 82(d)(4) added by amendment Effective

September 1, 1987

In Ex parte Smith, 423 So.2d 844 (Ala.1982), the Supreme Court held that

Rules 9 and 82, as then written, did not preclude consideration of fictitious parties

in determining the propriety of venue under certain circumstances. Specifically,

Smith held that the amendment of a complaint to substitute a real party for a

fictitious party related back to the time of the commencement of the action and thus

cured a venue defect that existed with reference to the real parties as of the time

of the commencement of the action. The addition of subparagraph (4) to Rule 82(d)

serves to permit the continued consideration of fictitious parties in determining the

propriety of venue for up to 75 days after the filing of a motion to transfer. This

amendment eliminates consideration of fictitious defendants in determining the

correctness of venue after the expiration of 75 days from the filing of a motion to

transfer. Thus, the actual party must be substituted for a fictitious party within 75

days from the filing of a motion to transfer in order for the fictitious party to affect

the venue of the action.

Committee Comments to October 1, 1995, Amendment to Rule 82

The amendment replaced the citation to the Code of Alabama 1940

(Recomp. 1958) with a citation to the corresponding section of the Code of

Alabama 1975.

Committee Comments to Amendment to Rule 82(d)(3) Effective January 1,

2013

The amendment to Rule 82(d)(3) provides for electronically transferring

case files in accord with current practice.

District Court Committee Comments (Effective July 1, 1983)

The initial version of Rule 14(dc) eliminated third-party practice from district

courts on the premise that the concept of pendent venue provided for in Rule 82(c)

should not be available in actions limited to a value of $5,000. The July 1, 1983,

revision of Rule 14(dc) to allow third-party practice meets a criticism of the earlier

version of that rule, which had withheld the availability of third-party practice in

district courts even where venue was otherwise proper as to the thirdparty

defendant. With the July 1, 1983, revision of Rule 14(dc) and the companion

revision of Rule 82(dc), third-party practice is proper in the district court when

venue as to the third-party claim exists independently of venue as to the main

action.

Note from the reporter of decisions: The order amending, effective

January 1, 2013, Rule 1(a), Rule 45(b)(1), and Rule 82(d)(3), and adopting

effective January 1, 2013, Rule 58(d) and the Committee Comments to the

Amendment to Rule 1(a) Effective January 1, 2013, the Committee Comments to

the Amendment to Rule 45(b)(1) Effective January 1, 2013, the Committee

Comments to the Adoption of Rule 58(d) Effective January 1, 2013, and the

Committee Comments to the Amendment to Rule 82(d)(3) Effective January 1,

2013, are published in that volume of Alabama Reporter that contains Alabama

cases from ___ So. 3d.