Ex parte Andrew J. Scarborough, etc., [Ms. SC-2024-0572, Mar. 28, 2025] __ So. 3d __ (Ala. 2025). The Court (Cook, J.; Stewart, C.J., and Shaw, Bryan, Mendheim, Mitchell, and McCool, JJ., concur; Cook, J., concurs specially; Sellers, J., dissents, which Wise, J., joins) grants a writ of mandamus, holding that the defendants waived their right to challenge venue under Rule 12(h)(1) of the Alabama Rules of Civil Procedure by failing to raise the issue timely. The case arises from a wrongful death and medical negligence claim under the Alabama Medical Liability Act (AMLA), brought by Scarborough as administrator after Timothy Chumney, a state inmate, died by suicide following mental health treatment at Limestone Correctional Facility. The complaint was initially filed in Montgomery County, and the defendants did not contest venue for nearly four years. Ms. *2.
The Court rejects the defendants’ argument that § 6-5-546, Ala. Code 1975, of the AMLA required transfer “at any time prior to trial,” explaining that this only applies when a plaintiff initially alleges that acts occurred in multiple counties but it is shown before trial that the acts occurred in only one county. Ms. *12, citing Ex parte Premier Plastic Surgery, 372 So. 3d 195 (Ala. 2022). Because the defendants initially conceded venue in Montgomery County, omitted a venue objection from their Rule 12 motions, and waited years to amend their answers, the Court concludes they waived the defense and could not invoke § 6-5-546 to belatedly transfer venue. Ms. **9-11, 17.
Justice Cook concurs specially, further clarifying that Rule 15(a) prohibits amending pleadings “as a matter of course” once 42 days have passed since the first trial setting, reinforcing that venue objections must be raised in a timely manner. He also warns that Rule 82(d), which allows motions to change venue, does not override waiver under Rule 12. Ms. **15-19.
Justice Sellers argues in dissent that statutory venue mandates under the AMLA should override procedural waiver, especially since Limestone County was the only appropriate venue and Montgomery County had no connection to the claims. He emphasizes that § 6-5-546’s language is mandatory and that transferring venue serves the interests of justice and judicial efficiency. Ms. ** 20-30.