Angus M. Macneil, Plaintiff-appellant, v. Arthur E. Whittemore, Defendant-appellee, 254 F.2d 820 (2d Cir. 1958)

It is quite clear that this action against a judge of the highest court of Massachusetts, who has only a summer place in Vermont, for claimed violation of plaintiff's civil rights through official action does not satisfy the venue requirements of 28 U.S.C. § 1391(a), since neither party resides in the District of Vermont. The only claim is waiver, because defendant first sought a dismissal for failure to state a claim and two days later moved for leave to amend his motion by adding the venue objection. When the court came to hear the motion nearly a month later, it granted the leave to amend and then dismissed because of the lack of venue. This was quite proper. The waiver provided in Fed.Rules Civ.Proc., rule 12(h), applies only where a waivable defense is not presented either by motion or by answer; it does not in any way prevent a judge in his discretion from permitting a party to expand the grounds of motion well in advance of a hearing. Plaintiff's application here to strike portions of defendant's brief is denied as wholly frivolous.

Affirmed.