41. Is the court likely to consider the manufacturer's claim for improper venue?

C is correct. Federal Rule of Civil Procedure (FRCP) 12(b) governs pre-answer motions. The defendant must raise certain defenses at the time he files a pre-answer motion or his answer, whichever is first, or the defense is waived. These defenses include lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. Therefore, the defense of improper venue is waived if not raised in the first motion made to the court.

The manufacturer should have raised the improper venue defense in its initial pre-answer motion. Here, because the manufacturer failed to raise this defense in its initial pre-answer motion, it has now been waived.

A is incorrect. The FRCP forbid a defendant who makes a pre-answer motion from making a further motion presenting any defense or objection listed in the rule which was available to him at the time he made the first motion and which he could have included but did not. The defense of improper venue is included in this list.

Therefore, if the defendant moves, before filing his answer, to dismiss the complaint, he is barred from making a further motion presenting the defense of improper venue if that defense was available to him when he made his original motion.

Here, the manufacturer should have raised the defense of improper venue in its initial pre-answer motion. Because the manufacturer failed to do so, it waived this defense.

B is incorrect. As stated above, the defense of improper venue is waived if not raised in a responsive pleading. Therefore, because it was not raised in the manufacturer's initial pre-answer motion, it has been waived.

D is incorrect. Even if a party has minimum contacts in a state, a court may still find that venue is improper. Moreover, a court cannot simply presume that venue is proper for a party based on a motion from an opposing party.