waived its objections to venue since it failed to raise this issue in earlier pleadings and, specifically, Memry did not file a motion to dismiss for improper venue. Both of these contentions are meritless.
"For a statement to be ambiguous, it must be susceptible of two reasonable interpretations." Banque Worms v. Banque Commerciale Privee, 679 F. Supp. 1173, 1180 (S.D.N.Y.), aff'd, 849 F.2d 787 (2d Cir. 1988); accord Stern v. Satra Corp., 539 F.2d 1305, 1310 (2d Cir. 1976). Rogen argues that the forum selection clause is susceptible to the interpretation that suits must be adjudicated within the geographical boundaries of the State of New York and does not necessarily designate New York State courts to the exclusion of federal courts sitting in New York. But such a reading is unnecessarily strained and ignores the clause's plain meaning. See City of New York v. Pullman, Inc., 477 F. Supp. 438, 442 (S.D.N.Y. 1979) (In considering if a forum selection clause is ambiguous, "what . . . govern[s] is an objective consideration of the language") The clause designates "the legal tribunals of the State of New York, not the courts "in" New York, as the agreed forum for adjudicating matters arising out of or pertaining to the Agreement. (emphasis added). The use of the word "of" and the phrase State of" is sufficiently specific and unambiguous to require that actions regarding the Agreement be litigated in New York State court. This holding is consistent with case law. In TUC Electronics., Inc. v. Eagle Telephonics, Inc., 698 F. Supp. 35, 39-40 (D. Conn. 1988), the district court found that the phrase "a court of original jurisdiction of the State of New York" indicated with "reasonable clarity that the parties agreed to limit their dispute to the state courts," and, therefore, the federal court was not a proper venue. Id. (Noting that the forum selection clause used "of" as opposed to "in" the State of New York, and the limiting words "State of" in holding that New York state courts were the chosen forum). See also Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656, 659 (2d Cir. 1988); Intermountain Systems, Inc. v. Edsall Const. Co., 575 F. Supp. 1195, 1198 (D. Colo. 1983) (Holding that the clause "venue shall be in Adams County, Colorado" could not be construed to include the federal court sitting in Adams County); Spatz v. Nascone, 364 F. Supp. 967, 974 (W.D. Pa. 1973) (Construing "the Courts of the Commonwealth of Pennsylvania" to mean only the state courts of Pennsylvania). The Court is satisfied that the interpretation of the forum clause offered by Rogen is not a reasonable one and, therefore, the clause is not rendered ambiguous.
Rogen's argument that Memry waived its objections for failing to seek enforcement of the forum selection clause earlier is similarly without merit. Rogen asserts that Memry's failure to file a motion to dismiss and its subsequent filing of a counterclaim, participation in discovery and "long delay in raising the issue" constitutes a waiver of the improper venue defense. Pursuant to Fed. R. Civ. P. 12(b), a defense of improper venue can be raised both through a motion or in a responsive pleading. Although, as Rogen asserts, Memry did not raise the venue issue through a motion to dismiss, Memry did assert as its second affirmative defense in its answer that the Southern District of New York "is not the proper venue for this action." (Answer at 2). Federal Rule of Civil Procedure 12(h) requires only that the defense of improper venue be raised either by motion or the responsive pleadings to preserve properly the objection. See, e.g., Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371 (2d Cir. 1966). Since defendant's answer clearly raises objections as to venue, it cannot be said that it has waived that defense. In addition, the fact that Memry filed a counterclaim and participated in discovery does not render its objections to venue abandoned. See Queen Noor, Inc. v. McGinn, 578 F. Supp. 218, 220 (S.D. Tex. 1984); Lomanco, Inc. v. Missouri Pacific R.R. Co., 566 F. Supp. 846, 849 (E.D. Ark. 1983); Shaw v. United States, 422 F. Supp. 339, 341 (S.D.N.Y. 1976). In short, Memry did not waive its venue objection and the objection is properly raised in this motion for summary judgment. Grissom v. Colotti, 644 F. Supp. 903, 904 (D. P.R. 1986) ("Summary judgment is an appropriate vehicle to assess the enforceability of a forum selection clause."); see also Carnival Cruise, 499 U.S. at 588 (Forum selection clause enforced through motion for summary judgment); Spatz, 364 F. Supp. at 967 (Same).
Accordingly, summary judgment is granted for improper venue and the complaint dismissed.
IT IS SO ORDERED
Dated: New York, New York
May 23, 1995
DEBORAH A. BATTS, U.S.D.J.