No Waiver of State-Court Venue Objections When Removal Makes the Defense “Unavailable”: Commentary on Benchmark Insurance Co. v. Harris

No Waiver of State-Court Venue Objections When Removal Makes the Defense “Unavailable”
Commentary on Benchmark Insurance Company, et al. v. Harris, Supreme Court of Mississippi (Dec. 11, 2025)

I. Introduction

This interlocutory decision from the Supreme Court of Mississippi resolves an important, practical question at the intersection of state venue rules and federal removal practice: Does a defendant waive a state-court improper-venue defense by failing to raise it in federal court after removal, when the defense is based on a state venue statute that has no application in federal court?

The Court’s answer is no—provided that:

  • the improper-venue objection is grounded in Mississippi’s state venue statute (here, Mississippi Code Section 11‑11‑3),
  • the case is removed to a federal district court that encompasses all potentially relevant state-court venues, and
  • the defendant asserts the improper-venue defense at the first opportunity after the case is remanded to state court.

The case arises from a workers’ compensation–related dispute. Cory Harris, an injured employee, sued Benchmark Insurance Company and related entities and individuals (collectively referred to as “Benchmark”) for allegedly mishandling his workers’ compensation claim, delaying treatment for a traumatic brain injury, and misrepresenting his injuries to the Mississippi Workers’ Compensation Commission (MWCC). Rather than sue in Rankin County, where the only Mississippi-resident defendant lives, Harris filed suit in Hinds County, claiming venue was proper because key misconduct involved the MWCC, located in Hinds County.

Benchmark removed the case to federal court and filed a motion to dismiss there, but raised no venue objection. After remand, Benchmark promptly moved in state court to transfer venue to Rankin County. The Hinds County Circuit Court held that Benchmark had waived its venue objection by failing to raise it in federal court, relying on the Mississippi Supreme Court’s earlier decision in Breal v. Downs Law Group. The Supreme Court, however, reverses and remands, expressly limiting its review to the waiver question.

II. Summary of the Opinion

The Supreme Court’s holding is targeted but significant:

  1. Sole issue on appeal: Whether Benchmark waived its improper-venue defense by not raising it in federal court (in either the notice of removal or the federal motion to dismiss).
  2. Harris’s attempt to pivot: On appeal, Harris largely abandoned the waiver issue and instead argued that venue was substantively proper in Hinds County. He did not cross-appeal the trial court’s finding that Hinds County venue was otherwise lacking.
  3. Appellate scope: Because this was an interlocutory appeal and Benchmark only sought review of the waiver ruling, the Court confined itself to deciding waiver and declined to reach the underlying substantive venue question.
  4. Key doctrinal move: Construing Mississippi Rule of Civil Procedure 12(g) and 12(h)(1) together, the Court holds that a defense is waived by omission from a Rule 12 motion only if it was “then available” when the motion was filed. Here, while the case was in federal court, a state-law objection that Rankin County (rather than Hinds County) was the correct Mississippi circuit court venue was simply not “available.” Federal venue turned only on the federal district, and both counties lie within the Southern District of Mississippi.
  5. Result: Benchmark did not waive its improper-venue defense. The order denying its motion to transfer venue is reversed, and the case is remanded to the Hinds County Circuit Court to address the improper-venue issue on the merits.

The Court aligns Mississippi with other jurisdictions that hold a defendant does not waive a state-court venue objection by failing to raise it in federal court when that objection has no legal significance under the federal venue framework.

III. Background and Procedural Posture

A. Underlying Dispute

Cory Harris alleged that he suffered a workplace injury while working for Mississippi Concrete in Hattiesburg. He claimed he was thrown by the chute of a concrete truck and sustained a traumatic brain injury. Mississippi Concrete carried workers’ compensation insurance with Benchmark Insurance Company.

The handling of his comp claim involved:

  • Benchmark Insurance Company – the workers’ compensation carrier;
  • Steadpoint Risk Management, LLC – Benchmark’s third-party administrator for the claim;
  • Genex Services, LLC – engaged to provide nurse case management; and
  • Sabrina L. Rawson – a nurse case manager, and the only Mississippi-resident defendant, residing in Rankin County.

Harris alleged the defendants:

  • failed to timely and properly authorize necessary medical treatment, aggravating his injuries; and
  • falsified or “doctored” a report about his injuries that was submitted to the MWCC, which sits in Hinds County.

All corporate defendants were nonresidents; Rawson was the sole in-state defendant.

B. Initial Filing and Harris’s Venue Choice

On November 21, 2023, Harris filed suit in the Hinds County Circuit Court, even though:

  • his injury occurred in Hattiesburg (Forrest County), and
  • the only resident defendant (Rawson) lived in Rankin County.

He invoked Mississippi Code Section 11‑11‑3(1)(a)(i) and alleged venue was proper in Hinds County because a substantial portion of the wrongful conduct occurred there, via interactions with the MWCC and allegedly falsified reports filed with the Commission.

C. Removal to Federal Court and Federal Motion Practice

On December 19, 2023, before filing any responsive pleading or pre-answer motion in state court, Benchmark:

  1. Removed the case to the United States District Court for the Southern District of Mississippi, asserting diversity jurisdiction and arguing that Rawson, the Mississippi defendant, was improperly joined.
  2. In its removal notice, Benchmark stated that federal venue was proper in the Southern District because it is “the district in which the state court action was filed,” tracking 28 U.S.C. § 1446(a).
  3. Moved to dismiss in federal court on the ground that Harris failed to exhaust administrative remedies with the MWCC. This was a pre-answer Rule 12-type motion in federal court.

Benchmark did not:

  • file any answer in federal court,
  • assert any venue objection there, or
  • engage in discovery or other merits litigation while in federal court.

Harris responded with a motion to remand, arguing the federal court lacked subject-matter jurisdiction because Benchmark had not met its “heavy burden” to show that Rawson was improperly joined.

On April 10, 2024, the federal district court agreed with Harris and remanded the case to Hinds County Circuit Court without reaching Benchmark’s federal motion to dismiss.

D. Post-Remand Motion to Transfer Venue

Nine days after remand—on April 19, 2024—Benchmark moved in state court to transfer venue from Hinds County to Rankin County. Harris opposed, arguing that:

  1. Benchmark had waived its improper-venue defense by not raising it in its notice of removal or federal motion to dismiss and by waiting approximately five months to assert it; and
  2. Even if there were no waiver, venue was substantively proper in Hinds County because of the alleged falsified materials submitted to the MWCC.

The circuit court:

  • Substantively rejected Hinds County venue—finding “no sufficient basis” to establish venue in Hinds County under Section 11‑11‑3(1)(a)(i); but
  • Denied the transfer motion solely on waiver grounds, relying on the Supreme Court’s decision in Breal v. Downs Law Group, 376 So. 3d 1221 (Miss. 2023).

Benchmark then sought—and obtained—permission to pursue an interlocutory appeal, limited to whether the venue objection had been waived.

IV. The Court’s Framing of the Issues

A. Harris’s Strategic Pivot on Appeal

On appeal, Harris did not meaningfully defend the circuit court’s waiver ruling. In fact, in a footnote, he explicitly conceded that he “does not contend that waiver is the correct basis for venue in Hinds County.”

Instead, he argued that the circuit court’s alternative conclusion—that Hinds County venue was not substantively established—was wrong, and urged the Supreme Court to affirm the denial of the transfer motion on that different ground.

B. “Right Result, Wrong Reason” Doctrine and Interlocutory Appeals

Harris relied on a familiar appellate principle: a reviewing court may affirm a trial court’s judgment if the result is correct, even if the trial court’s reasoning was flawed. He cited cases such as:

  • Patel v. Telerent Leasing Corp., 574 So. 2d 3 (Miss. 1990) – appeal from a final money judgment;
  • Tedford v. Dempsey, 437 So. 2d 410 (Miss. 1983) – child-custody modification appeal; and
  • Brocato v. Mississippi Publishers Corp., 503 So. 2d 241 (Miss. 1987) – appeal from a dismissal.

The Supreme Court distinguished these cases on a critical basis: they all involved final judgments or dispositive orders. In such situations, affirming on any correct ground avoids unnecessary remand and further litigation.

Here, by contrast:

  • The appeal was interlocutory (mid-stream in the litigation),
  • Remand would be necessary regardless of who prevailed, and
  • Benchmark’s petition for interlocutory review expressly confined the issue to waiver, not the underlying substantive correctness of Hinds County venue.

The Court therefore declined to reach the merits of whether Hinds County was a proper venue and expressly limited its review to the question presented: Did Benchmark waive its improper-venue defense?

V. Governing Law and Precedents

A. Mississippi’s Waiver Rules: Rule 12(g) and 12(h)(1)

Mississippi Rule of Civil Procedure 12 establishes when certain defenses—such as lack of jurisdiction, improper venue, insufficiency of service, etc.—must be raised or are deemed waived.

  • Rule 12(h)(1)(A): A defense of improper venue is waived if omitted from a motion in the circumstances described in Rule 12(g).
  • Rule 12(g): If a party makes a motion under Rule 12 but omits from that motion any defense or objection “then available” to it, the party may not thereafter make a motion based on the omitted defense.

These provisions have long been interpreted to mean that a defendant must raise improper venue in its first Rule 12 motion or in its answer, or else the defense is waived. Representative cases include:

  • Lowrey v. Will of Smith, 543 So. 2d 1155, 1159 (Miss. 1989);
  • Young v. Huron Smith Oil Co., Inc., 564 So. 2d 36, 39 (Miss. 1990);
  • U.S. Bancorp v. McMullan, 183 So. 3d 833, 835–36 (Miss. 2016).

However, the textual phrase “then available” in Rule 12(g) plays a crucial role in the Court’s analysis here.

B. Mississippi’s Venue Statute: Mississippi Code § 11‑11‑3(1)(a)(i)

Section 11‑11‑3(1)(a)(i) is Mississippi’s general civil venue provision. Among other things, it typically allows a plaintiff to sue in any county where:

  • a substantial alleged act or omission occurred, or
  • a substantial “event or omission giving rise to the claim” took place.

Harris relied on this statute to justify filing in Hinds County by arguing that key misconduct (particularly the alleged falsification of reports to the MWCC) occurred there.

C. Federal Removal Statute: 28 U.S.C. § 1446(a)

Under 28 U.S.C. § 1446(a), a defendant seeking to remove a civil action from state court must file a notice of removal in:

“the district court of the United States for the district and division within which such action is pending.”

Once removed, federal venue is determined at the district (and sometimes division) level—not by county. In this case:

  • Hinds County and Rankin County both lie within the Southern District of Mississippi,
  • so whether Harris filed in Hinds or Rankin County made no difference to the proper federal venue district.

D. The Court’s Use of Comparative State Authority

To support its approach, the Court cited decisions from nearby states that confronted analogous issues:

  • Alabama – Ex parte Burr & Forman, LLP, 5 So. 3d 557 (Ala. 2008)
    The Alabama Supreme Court held that a defendant could not be penalized for failing to raise a defense in federal court that could only be litigated in state court. Post-remand assertion of that defense was allowed.
  • Texas – Toliver v. Dallas Fort Worth Hospital Council, 198 S.W.3d 444 (Tex. App. 2006)
    The Texas court affirmed a trial court’s ruling that defendants had not waived venue objections when they removed the case to federal court, filed an answer there, and then asserted venue objections in state court after remand.
  • Louisiana – Lewis v. Transocean Terminal Operators, Inc., 900 So. 2d 179 (La. Ct. App. 2005)
    The court held that a party’s “failure to assert an objection to venue that could not legally be asserted in federal court” did not waive the right to raise that objection in state court after remand.

The Mississippi Supreme Court expressly follows the logic of these cases: a party cannot be deemed to have waived a defense that federal law did not allow or require it to raise in federal court.

E. Distinguishing Breal v. Downs Law Group

The circuit court had relied on Breal v. Downs Law Group, 376 So. 3d 1221 (Miss. 2023), to find waiver. The Supreme Court emphatically distinguishes Breal on several grounds:

  1. Nature of the “venue” issue:
    • In Breal, the issue was a forum-selection clause requiring litigation in a specific Florida state circuit court.
    • That clause was fully applicable and enforceable in both federal and Mississippi state courts; thus, the “improper forum” defense based on the clause was clearly “available” in federal court.
    • In Benchmark, by contrast, the alleged impropriety related only to which Mississippi county circuit court (Hinds vs. Rankin) was proper under a state statute. That question had no bearing on federal venue once the case was removed, because both counties are within the same federal district.
  2. Timing and conduct displaying waiver:
    In Breal:
    • The defendants filed answers in federal and state court without invoking the forum-selection clause.
    • After remand, they engaged in discovery and moved for summary judgment—again without mentioning the clause.
    • The forum-selection clause was eventually raised by the circuit court sua sponte, not by the defendants themselves.
    • By that time, the Court held, the defendants had unmistakably waived the clause through their conduct.
    In Benchmark:
    • Benchmark did not file an answer in federal court or state court before raising improper venue.
    • Benchmark did not engage in discovery or other merits litigation prior to asserting its venue objection post-remand.
    • Benchmark invoked the venue defense at the first real opportunity in state court after remand.

The Court concluded that Breal was inapposite and the trial court erred in treating it as controlling.

VI. The Court’s Legal Reasoning

A. Central Question: Was the Defense “Then Available”?

The key interpretive move is the Court’s focus on the language of Rules 12(g) and 12(h)(1). A defense is waived by omission from a pre-answer Rule 12 motion only if:

  1. the motion is made “under this rule” (i.e., Mississippi Rule 12), and
  2. the defense was “then available” at the time of the motion.

When Benchmark’s only pre-answer motions were made, they were made in federal court following removal. At that point:

  • The only relevant federal venue question was whether the Southern District of Mississippi was a proper venue under the federal rules.
  • Because both Hinds and Rankin Counties are within the Southern District, the location of the original filing (Hinds) had no effect on the propriety of federal venue.
  • Thus, a state-law objection that “Rankin County is the proper Mississippi circuit court venue, not Hinds County” was simply irrelevant in federal court and had no procedural vehicle for adjudication there.

Accordingly, the Court holds that the state-law improper-venue defense was not “then available” within the meaning of Rule 12(g) at the time of Benchmark’s federal pre-answer motion to dismiss. Because the defense was not available, it could not be deemed waived under Rule 12(h)(1)(A).

B. Removal Should Not Force a Hobson’s Choice

The Court is sensitive to the practical consequences of a contrary rule. If a defendant were deemed to waive a state-court venue defense by removing the case to federal court and litigating there, then:

  • Defendants would be forced to choose between:
    • exercising their statutory right to remove a case to federal court, and
    • preserving their right to challenge the plaintiff’s choice of state-court venue.
  • This would penalize defendants for invoking federal diversity jurisdiction, especially when the removal later proves unsuccessful (as here, where the federal court found lack of subject-matter jurisdiction).

The Court adopts the view, reflected in Alabama, Texas, and Louisiana decisions, that a defendant “should not have to forfeit an improper-venue claim simply because it chose to assert a federal diversity-jurisdiction claim, which ultimately proved unsuccessful.”

C. Benchmark’s Conduct After Remand

Even if the defense was not available in federal court, waiver could, in theory, still occur after remand, if Benchmark delayed or engaged in inconsistent conduct. The Court notes, however, that:

  • The case was remanded to state court on April 10, 2024.
  • Benchmark filed its motion to transfer venue just nine days later, on April 19, 2024.
  • There was no intervening answer, discovery activity, or merits motion in state court before the venue motion.

Under these specific facts, the Court finds that Benchmark asserted its improper-venue defense “immediately when it became available in state court.” Therefore, no waiver occurred.

D. Resulting Disposition

With waiver rejected, the Court:

  • Reverses the trial court’s denial of the motion to transfer venue, which had rested solely on waiver; and
  • Remands the case to the Hinds County Circuit Court to resolve the substantive improper-venue question—i.e., whether Hinds County is a proper venue under Section 11‑11‑3(1)(a)(i) and, if not, whether transfer to Rankin County is required.

VII. Simplifying Key Legal Concepts

A. Improper Venue vs. Jurisdiction

  • Jurisdiction concerns a court’s power to hear a type of case or bind specific parties (e.g., subject-matter jurisdiction and personal jurisdiction).
  • Venue concerns the most appropriate location within a court system to hear a case (which county or which district).
  • Improper venue does not necessarily mean the court lacks power; it simply means the case is in the wrong place and should be transferred or, in some cases, dismissed.

B. Waiver of Defenses Under Rule 12

Many procedural defenses must be raised early—either in a pre-answer Rule 12 motion or in the first responsive pleading (answer). If not, they are deemed waived, meaning the defendant loses the right to rely on them later.

For improper venue, the typical rule is:

  • If you file a Rule 12 motion and could have raised improper venue but did not, you cannot raise venue in a later motion.
  • However, this presupposes that the defense was actually “then available.” If it was not (as in this case, while the matter was in federal court), the omission does not constitute waiver.

C. Removal to Federal Court

“Removal” allows a defendant to re-route a case filed in state court into federal court when certain jurisdictional requirements are met, such as:

  • Diversity jurisdiction: plaintiffs and defendants are citizens of different states and the amount in controversy exceeds $75,000; or
  • Federal question jurisdiction: the case involves a claim arising under federal law.

Once removed:

  • The case proceeds under federal procedural rules.
  • “Venue” is determined by federal law (e.g., which federal district is appropriate), not by state statutes allocating cases between counties.

D. Fraudulent or Improper Joinder

To maintain diversity jurisdiction, all plaintiffs must be completely diverse from all defendants. If a plaintiff sues a non-diverse defendant purely to defeat diversity, the removing party may argue that this defendant is “improperly joined” (or “fraudulently joined”). If proven, the court can ignore that defendant for jurisdictional purposes.

Here, Benchmark attempted to show that nurse Rawson, a Mississippi resident, was improperly joined. The federal court held Benchmark failed to meet this “heavy burden,” and accordingly remanded the case.

E. Forum-Selection Clauses vs. Statutory Venue

  • Statutory venue (as here, under Section 11‑11‑3) is dictated by state law and typically allows filing in one of several counties.
  • Forum-selection clauses are contractual agreements that specify where disputes must be litigated (e.g., “All disputes shall be litigated in the Circuit Court for Broward County, Florida”).
  • In Breal, because the clause designated a Florida state court, the defendants could and should have raised that clause in both federal and Mississippi courts. Their failure to do so over a lengthy period amounted to waiver.

F. Interlocutory Appeal and Cross-Appeal

An interlocutory appeal occurs before a case is fully resolved in the trial court. In Mississippi, such appeals require permission, and the issues are tightly limited to those accepted by the Supreme Court.

A cross-appeal allows the appellee (here, Harris) to seek review of aspects of the lower court’s ruling that were adverse to him. Harris did not cross-appeal the circuit court’s conclusion that Hinds County venue was substantively unsupported.

Given the interlocutory posture and the specific issue accepted for review, the Supreme Court declined to revisit the substantive venue ruling and confined itself to the waiver question.

VIII. Practical Impact and Future Significance

A. For Defendants: Freedom to Remove Without Forfeiting Venue Challenges

This decision provides important clarity and protection for defendants:

  • Defendants can remove a case to federal court without automatically waiving a state-law improper-venue objection.
  • Where the federal district encompasses all potentially relevant state counties, state-court venue challenges under Mississippi statutes are not “available” in federal court and thus cannot be waived there.
  • Upon remand, defendants must still act promptly—raising improper venue in their first state-court filing (typically a pre-answer motion or in the answer itself)—but they are no longer forced to choose between federal removal and venue rights.

B. For Plaintiffs: Limits on Reliance on Post-Removal Waiver

Plaintiffs cannot assume that a defendant’s failure to raise state-venue issues in federal removal papers or federal motions will prevent the defendant from challenging venue after remand. Strategically:

  • Forum selection (choice of county) remains vulnerable if not clearly supported by Section 11‑11‑3 or other venue statutes.
  • Where a plaintiff attempts to anchor venue in a county based on tenuous or marginal contacts (e.g., administrative filings in a county where the injury and parties are elsewhere), the defense may still move for transfer after federal detours.

C. For Trial Courts: Clarified Waiver Analysis After Remand

Trial courts must now:

  • Examine whether a venue defense was legally available at the time of any pre-answer motions filed in federal court.
  • Decline to find waiver when the only prior pre-answer motion practice occurred in federal court on issues unrelated to state-court venue and the defense is raised promptly upon remand.
  • Reserve waiver findings for cases more akin to Breal, where the defense (e.g., a forum-selection clause) is clearly applicable in both courts and the defendant actively litigates without asserting it.

D. Alignment with Other Jurisdictions

By following Ex parte Burr & Forman, Toliver, and Lewis, Mississippi joins a broader regional consensus:

  • A defendant will not be deemed to have waived a state-specific venue challenge that could not meaningfully be asserted in federal court.
  • The “availability” language in Rule 12 (and its state equivalents) has real teeth; it prevents formalistic waiver findings where the defense genuinely had no place in the earlier federal proceedings.

E. Potential Limits and Open Questions

The holding is grounded in the specific facts of this case and leaves some questions for future litigation, including:

  • Different federal geography: What if the state-court counties at issue straddle different federal districts? The Court’s reasoning is premised on Hinds and Rankin Counties both lying within the Southern District.
  • Post-remand delay or inconsistent conduct: The Court repeatedly emphasizes that Benchmark asserted improper venue “immediately” after remand. A defendant who delays, files substantive motions, or engages in extensive state-court litigation before asserting venue may still face a waiver finding.
  • Overlap with federal venue objections: If a defendant faces a federal venue issue (e.g., improper district) in addition to a state-court county venue issue, how far does this reasoning extend? The opinion speaks narrowly to the situation where the only meaningful venue dispute is intra-state (Hinds vs. Rankin) and both fall within the same federal district.

IX. Conclusion

This decision establishes an important and pragmatic rule of Mississippi civil procedure: a defendant does not waive a state-court improper-venue defense by failing to raise it in federal court, when that defense was not “then available” under the federal venue framework and is asserted at the first real opportunity after remand.

Doctrinally, the Court:

  • Gives substantive effect to the “then available” language in Rule 12(g);
  • Clarifies that venue waiver depends on both timing and the legal context in which earlier motions were made;
  • Distinguishes waiver based on contractually agreed forum-selection clauses (Breal) from statutory venue objections based on county selection; and
  • Aligns Mississippi with other states that reject penalizing defendants for pursuing federal removal when state-specific venue objections are not cognizable there.

Practically, the opinion safeguards defendants’ ability to pursue removal without surrendering their right to contest the plaintiff’s choice of county and underscores the need for prompt, precise assertion of venue defenses once a case is again within the state system. The substantive question—whether Hinds County is a proper venue under Mississippi’s venue statute—remains for the circuit court to decide on remand, but going forward the path for raising and preserving such objections is considerably clearer.

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