United States v. 31,200 Talwin 50 Mg Tablets & Various Other Controlled Substances, Leonard F. Faymore, Party-In-Interest

812 F.2d 1409 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. 31,200 TALWIN 50 MG TABLETS & VARIOUS OTHER CONTROLLED SUBSTANCES, Defendant, Leonard F. FAYMORE, Party-In-Interest, Appellant. No. 85-4005. United States Court of Appeals, Sixth Circuit. Jan. 30, 1987. Before KEITH and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. ORDER — 1 — This appeal has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure. — 2 — It is concluded upon a review of the district court record that the district court properly granted appellee's motion for judgment on the pleadings. Appellant's answer to the civil complaint admitted all of the facts material to forfeiture of controlled substances in the possession of the Drug Enforcement Administration pursuant to 21 U.S.C. Sec. 824(f). Further, appellant's answer failed to assert any viable defense to the forfeiture of the controlled substances which are the subject of this action. — 3 — Appellant argues on appeal that the district court lacked proper venue for this forfeiture action. Although appellant subsequently moved the district court for a change of venue, appellant admitted that venue was proper in his answer. Pursuant to Rule 12(h)(1), Federal Rules of Civil Procedure, the affirmative defense of improper venue is waived unless pleaded in the initial responsive pleading. Bodenhamer Building Corp. v. Architectural Research Corp., 106 F.R.D. 521 (E.D.Mich.1985); 5 C. Wright and A. Miller, Federal Practice and Procedure Sec. 1391 (1969). Jurisdiction was clearly within the district court pursuant to 28 U.S.C. Sec. 1395(c). — 4 — Appellant's remaining assignments of error on appeal are without merit. — 5 — Therefore, for the reasons set forth by the district court in its order, the judgment of the district court is hereby affirmed pursuant to Rule 9(a), Rules of the Sixth Circuit.