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Click here for the full text of this decision FACTS:Tracey Toliver sued DFW Hospital Council claiming racial and sexual harassment, intentional infliction of emotional distress, negligent hiring and retention of employees, and civil conspiracy. DFW Hospital Council filed a notice of removal to the United States District Court for the Fort Worth Division of the Northern District of Texas, arguing that Toliver’s claims arose under Title VII of the Civil Rights Act of 1964. Several days later, it filed a motion to transfer venue to the Dallas Division of the Northern District and an answer in the federal court case. Toliver objected to the motion to transfer, and on the same day, Judge John McBryde of the Fort Worth Division denied the motion. Thereafter, McBryde granted Toliver’s motion to remand the case to the 352nd Judicial District Court. Fourteen days after the remand order was filed with the Tarrant County district clerk, DFW Hospital Council filed a “renewed motion to transfer venue” to Dallas County. The trial court granted the motion and transferred the case to the 14th Judicial District Court of Dallas County. That court ultimately rendered judgment in this case, granting DFW Hospital Council’s motion for summary judgment against Toliver. HOLDING:Affirmed. Toliver argues that the motion to transfer venue that was filed in state court was waived because appellees first removed the case to federal district court and filed a motion to transfer and an answer in that court. DFW Hospital Council argues that it did not invoke the state court’s jurisdiction and waive its objection to venue in state court by filing a motion to transfer and an answer in federal court. It contends that proceedings in federal court are not considered in determining whether the due order of pleadings requirement was met for a motion to transfer filed in state court. In this case, as in Bishop-Babcock Sales Co. of Ohio v. Lackman, 4 S.W.2d 109 (Tex. Civ. App. – Fort Worth 1928, no writ), other than the notice of removal, the motion to transfer venue was appellees’ first pleading filed in state court, and it comported with Texas Rule of Civil Procedure 86(1)’s due order of pleadings requirement. DFW Hospital Council did not invoke the jurisdiction of the state court or otherwise address the merits of this case before removing the case to federal court and did not invoke the state court’s jurisdiction or address the merits of the case after remand and before filing a motion to transfer venue. The court concludes that appellees did not waive the motion to transfer venue in state court by filing pleadings in federal court. DFW Hospital Council’s motion to transfer venue was not waived because it filed the motion before it filed any other pleading that invoked the state court’s jurisdiction. The rules that establish deadlines by which a defendant must answer a suit do not provide that an answer or other pleading is waived if not filed by the deadline. Instead, the rules provide a date before which the plaintiff may not take a default judgment, even if no answer has been filed. After that date, a plaintiff may take a default judgment if no answer has yet been filed. And a defendant may answer anytime before the trial court enters a default judgment. The same principle applies to motions to transfer venue, the court decides. OPINION:Lang-Miers, J.; Moseley, Richter and Lang-Miers, J.J.

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