Stjernholm v. Peterson, 83 F.3d 347 (10th Cir. 1996). · Go Syfert
Stjernholm v. Peterson, 83 F.3d 347 (10th Cir. 1996). Cases Citing This Book View Copy Cite
71 citation events (70 in the last 25 years) across 14 distinct courts.
Treatment trajectory · 1999 → 2026 · click a year to view as-of
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At page 349 District court power to raise venue issues sua sponte65 citing cases[A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue31 citing courts put it this way · 64 listed here
  • Gordon v. Gordon, No. 3:24-cv-01820 (M.D. Pa. Aug. 29, 2025).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Newton v. Akers, No. 3:23-cv-01469 (M.D. Pa. Feb. 6, 2024).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Newton v. Akers, No. 4:24-cv-00456 (S.D. Tex. Feb. 6, 2024).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Hadnot v. Welz, No. 1:23-cv-00791 (M.D. Pa. Nov. 22, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Massaquoi v. Oddo, No. 3:23-cv-00349 (M.D. Pa. Nov. 13, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Massaquoi v. Oddo, No. 3:23-cv-00280 (W.D. Pa. Nov. 13, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Schwager v. Norristown State Hosp., No. 1:23-cv-01621 (M.D. Pa. Sept. 29, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Draucker v. Commonwealth of Pennsylvania, No. 3:23-cv-00133 (W.D. Pa. June 22, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Draucker v. Commonwealth Of Pennsylvania, No. 1:23-cv-01022 (M.D. Pa. June 22, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Deyo v. Eck, No. 1:23-cv-00689 (M.D. Pa. Apr. 27, 2023).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
Show 54 more citing cases
  • Brizuela v. Johnson, No. 1:22-cv-00105 (N.D. W. Va. Oct. 7, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Brizuela v. Johnson, No. 1:22-cv-01304 (M.D. Pa. Oct. 7, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Brizuela v. Mon Health Med. Ctr., No. 1:22-cv-01305 (M.D. Pa. Oct. 6, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Brizuela v. Mon Health Med. Ctr., No. 1:22-cv-00104 (N.D. W. Va. Oct. 6, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Wright v. Gallik, No. 2:22-cv-00298-MJH (W.D. Pa. Feb. 16, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Wright v. Gallik, No. 1:22-cv-00215 (M.D. Pa. Feb. 16, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Wright v. Gallik, No. 3:22-cv-00026 (W.D. Pa. Feb. 16, 2022).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Talbott v. Credit Acceptance Corp., No. 1:21-cv-01939 (M.D. Pa. Nov. 17, 2021).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Shumkova v. Kerchentsev, No. 3:21-cv-01015 (M.D. Pa. June 9, 2021).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Shumkova v. Kerchentsev, No. 2:21-cv-02621 (E.D. Pa. June 9, 2021).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Loper v. Broomall Rehab & Nursing Ctr., No. 2:21-cv-02012 (E.D. Pa. May 3, 2021).
    ([A] district court may raise on its own motion an issue of defective 2 venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the…)
  • Washington v. Lehigh Cnty. Dist. Attorney's Off., No. 3:21-cv-00069 (M.D. Pa. Jan. 12, 2021).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Washington v. Lehigh Cnty. Dist. Attorney's Off., No. 5:21-cv-00159 (E.D. Pa. Jan. 12, 2021).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Ramey v. Lawrie, No. 2:20-cv-04576 (E.D. Pa. Sept. 17, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Ramey v. Lawrie, No. 4:20-cv-01689 (M.D. Pa. Sept. 17, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Rice v. Golden, No. 2:20-cv-03116 (E.D. Pa. June 23, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Rice v. Young, No. 2:20-cv-03115 (E.D. Pa. June 23, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Rice v. Golden, No. 1:20-cv-01039 (M.D. Pa. June 23, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Rice v. Young, No. 1:20-cv-01043 (M.D. Pa. June 23, 2020).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Jeri v. Finley, No. 1:19-cv-01805, 2019 WL 5721885 (M.D. Pa. Nov. 5, 2019).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Bailey v. Kirsch, M.D., No. 1:19-cv-01281 (M.D. Pa. July 24, 2019).
    ([A] district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the i…)
  • Gordon v. Governor of Georgia, No. 2026-0918 (D.D.C. June 2, 2026).published
    Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986); see also Chatman-Bey v. Thornburgh, 864 F.2d 804, 814 (D.C. Cir. 1988) (“[I]ssuance of an order to show cause is the most app…
  • Gordon, No. 1:26-cv-03326 (N.D. Ga. June 2, 2026).
    Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986); see also Chatman-Bey v. Thornburgh, 864 F.2d 804, 814 (D.C. Cir. 1988) (“[I]ssuance of an order to show cause is the most app…
  • Abouloh v. Lehigh Cnty. Prison, No. 5:25-cv-03377 (E.D. Pa. June 30, 2025).
    Pa. July 24, 2019) (citing Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986)).
  • Abouloh v. Lehigh Cnty. Prison, No. 3:25-cv-00617 (M.D. Pa. June 30, 2025).
    Pa. July 24, 2019) (citing Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986)).
  • Graddy v. Carnegie Academy, LLC, 717 F. Supp. 3d 1133 (D. Utah 2024).published
    Civ. P. 12(h)(1); Stjernhold v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996). 43 See 1mage Software, 459 F.3d at 1055 ; Sanchez, 762 F.3d at 1152 . 44 Cf. Pls.’ Resp. in Opp’n to Defs.’ Mot. to Transfer Pursuant to 28 U.S.C. § 1404 (a) or,…
  • Ortiz v. Zborovancik, No. 3:23-cv-00248 (W.D. Pa. Oct. 11, 2023).
    Pa. July 24, 2019) (citing Stiernhoim_v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • Ortiz v. Zborovancik, No. 3:23-cv-01345 (M.D. Pa. Oct. 11, 2023).
    Pa. July 24, 2019) (citing Stiernhoim_v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • McCain v. Pineda, No. 3:23-cv-00059 (M.D. Pa. Jan. 18, 2023).
    Pa. July 24, 2019) (citing Stienholm_v. -2- Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weexs, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • Medina v. Reich, No. 1:21-cv-00881 (M.D. Pa. Aug. 17, 2022).
    Pa. July 24, 2019) (citing Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • Medina v. Reich, No. 5:22-cv-03300 (E.D. Pa. Aug. 17, 2022).
    Pa. July 24, 2019) (citing Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • Bond v. McKean Cnty., No. 4:19-cv-01535, 2019 WL 4452228 (M.D. Pa. Sept. 17, 2019).
    Pa. July 24, 2019) (citing Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986).
  • Thrasher v. Biomet Inc, No. 4:18-cv-04129 (W.D. Ark. Apr. 22, 2019).
    (holding that sua sponte dismissal for improper venue is inappropriate after the defendants waive venue)
  • Yavuz v. 61 MM, LTD., 576 F.3d 1166 (10th Cir. 2009).published
    (A party waives the right to challenge venue if he fails to raise that defense either in his responsive pleading or in a motion to dismiss ....)
  • Auto. Mechanics Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740 (7th Cir. 2007).published 2 cites
    (holding that sua sponte dismissal not allowed after waiver under FED. R. CIV. P. 12(h)(1))
  • Sheffer, No. 3:26-cv-00496 (W.D. Pa. Mar. 26, 2026).
    See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996).
  • Allen v. SCI Rockview, No. 2:25-cv-00734 (W.D. Pa. June 5, 2025).
    See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996); Garcia v. Pugh, 948 F. Supp. 20 , 23 n.5 (E.D.
  • Alexander v. Evans, No. 2:25-cv-00581 (W.D. Pa. May 2, 2025).
    See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996).
  • Scott v. State of Texas, No. 24-5124 (10th Cir. Jan. 2, 2025).unpublished
    (setting out procedures district courts must follow before raising the issue of venue sua sponte)
  • Image Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044 (10th Cir. 2006).published
  • California Cas. & Fire Ins. v. Brinkman, 50 F. Supp. 2d 1157 (D. Wyo. 1999).published
  • Breland v. ATC Vancom, Inc., 212 F.R.D. 475 (E.D. Pa. 2002).published
  • Taylor v. PA Attorney Gen., No. 2:20-cv-01050 (E.D. Pa. Feb. 21, 2020).
  • Hernandez v. Tice, No. 5:20-cv-04001 (E.D. Pa. Aug. 14, 2020).
  • Wahl v. Warden of SCI-Mahanoy, No. 5:21-cv-02014 (E.D. Pa. Apr. 30, 2021).
  • Pal v. Superintendent, State Corr. Inst. at Greene, No. 1:19-cv-01589 (M.D. Pa. Aug. 29, 2019).
  • Hernandez v. Tice, No. 1:20-cv-00835 (M.D. Pa. Aug. 14, 2020).
  • Atkins v. Superintendent of SCI Somerset, No. 3:24-cv-00105 (W.D. Pa. May 21, 2024).
  • Reist v. Dist. Attorney of Blair Cnty., No. 3:24-cv-00169 (W.D. Pa. Aug. 19, 2024).
  • Williams v. Terra, No. 3:24-cv-00257, 2024 WL 4635391 (W.D. Pa. Oct. 31, 2024).
  • Reist v. Dist. Attorney of Blair Cnty., No. 3:24-cv-01553 (M.D. Pa. Aug. 19, 2024).
  • Williams v. Terra, No. 2:24-cv-06142 (E.D. Pa. Oct. 31, 2024).
  • Alicia Coulter v. Coby Whitaker; Kevin W. Burke; & City of Owasso, No. 1:25-cv-00165 (D. Utah Apr. 21, 2026).
  • Alicia Coulter v. Coby Whitaker; Kevin W. Burke; & City of Owasso, No. 4:26-cv-00226 (N.D. Okla. Apr. 21, 2026).
Retrieving the full opinion text from the archive…
Alvin STJERNHOLM; Elsie Stjernholm, Plaintiffs-Appellants,
v.
Barbara PETERSON, Dorothy Ban, Debbie J. Brown, Individually and in Their Official Capacities; Cecil Clark; Bill Clark; Bill Smith; Clark A. Smith; Paul Smith; Ann D. Smith; Clark and Ann Smith Estate and Auction Company, Defendants-Appellees
95-1197.
Court of Appeals for the Tenth Circuit.
May 9, 1996.
Published opinion
83 F.3d 347
1996 U.S. App. LEXIS 10888
1996 WL 239369
Submitted on the briefs.*, Alvin Stjernholm. and Elsie Stjernholm, Denver, Colorado, pro se., Loretta C. Argrett, Assistant Attorney General, Ann B. Dumey and Roger E. Cole, Department of Justice, Washington, D.C.; Henry Lawrence Solano, United States Attorney, of counsel, Denver, Colorado, for Defendants-Appellees Barbara Peterson, Dorothy Ban, and Debbie J. Brown., Bill Smith, Clark A. Smith, Paul Smith, Ann D. Smith, and Clark and Ann Smith Estate and Auction Company, Cheyenne, Wyoming, pro se.
Brorby, Ebel, Henry.
Cited by 65 opinions  |  Published
BRORBY, Circuit Judge.

Plaintiffs Alvin and Elsie Stjernholm brought this action against three Internal Revenue Service agents, Barbara Peterson, Dorothy Ban, and Debbie Brown (referred to collectively as “the federal defendants”), Clark and Ann Smith Estate and Auction Company (hereafter “Smith Estate and Auction”), and six of Smith Estate and Auction’s employees, Cecil Clark, Bill Clark, Bill Smith, Clark A. Smith, Paul Smith, Ann D. Smith, alleging violations of the Fourth and Fifth Amendments, as well as state law, arising out of the Internal Revenue Service’s seizure and sale of certain personal property belonging to the Stjernholms to satisfy a tax lien. The Stjernholms’ primary contention is that the defendants conspired to sell their personal property “below fair market value to punish the Plaintiffs” and actually “caused property of the Plaintiffs[] to be sold far below its true value.”

The clerk of the district court entered a notice of default against Bill Smith, Clark A Smith, Paul Smith, Ann D. Smith, and Smith Estate and Auction. Bill' Smith, Clark A Smith, Paul Smith, Ann D. Smith, and Smith Estate and Auction later filed a motion to set aside the entry of default and a “response” to the Stjernholms’ complaint. The district court granted the motion to set aside the entry of default and treated the “response” as a formal answer to the Stjernholms’ complaint. In the same order, the district court, sua sponte, ordered the Stjernholms to show cause why the case should not be transfered to the United States District Court for the District of Wyoming, on the ground venue was improper in the United States District Court for the District of Colorado. After receiving the Stjernholms’ response to the order to show cause, the district court con-[*349] eluded venue was improper and dismissed plaintiffs’ action. This appeal followed.

The Stjemholms contend it was error for the district court to raise the issue of venue sua sponte and dismiss their claims against Bill Smith, Clark A. Smith, Paul Smith, Ann D. Smith, and Smith Estate and Auction. [1] The Stjemholms are correct, at least in part. A party waives the right to challenge venue if he fails to raise that defense either in his responsive pleading or in a motion to dismiss under Fed.R.Civ.P. 12(b)(3). Fed.R.Civ.P. 12(h)(1). However, at any time before the defendants waive the defense of improper venue, “a district court may raise on its own motion an issue of defective venue or lack of personal jurisdiction; but the court may not dismiss without first giving the parties an opportunity to present their views on the issue.” Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259 (11th Cir.1988). The district court may do so by ordering the plaintiff to show cause why the case should not be dismissed or transfered on the ground venue is improper, provided the district court gives all parties adequate notice and an opportunity to respond. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir.1986). This procedure gives the plaintiff an opportunity to contest the dismissal or transfer and allows the defendant the opportunity to prevent dismissal or transfer by waiving venue. Id.

In this case, however, the district court did not raise the defense of improper venue before Bill Smith, Clark A. Smith, Paul Smith, Ann D. Smith, and Smith Estate and Auction waived that issue. In the same order in which it directed the Stjernholms to show cause why their case should not be transfered or dismissed for improper venue, the district court accepted these defendants’ “response” as their formal answer to the complaint. The defendants did not raise the defense of improper venue in their response, nor did the defendants seek to file an amended answer thereafter. See Fed.R.CivJ?, 12(h)(1) (venue not waived if raised “in a responsive pleading or an amendment thereof permitted by [Fed.R.Civ.P.] 15(a) to be made as a matter of course”) (emphasis added). Accordingly, in a single ruling, the ■ district court both confirmed these defendants’ waiver of the defense of improper venue, Fed.R.Civ.P. 12(h), and directed the Stjemholms to show cause why their case should not be transfered or dismissed for improper venue. In light of the defendants’ waiver, it was error for the district court to order the Stjernholms to show cause, and it was also, error for the district court to dismiss the Stjemholms’ action against .Bill Smith, Clark A Smith, Paul Smith, Ann D. Smith, and Smith Estate and Auction for improper venue some six months later.

REVERSED AND REMANDED.

1

. The Stjemholms raise two other issues on appeal, neither of which have merit. First, they contend the district court erred when it dismissed their claims against the federal defendants pursuant to Fed.R.Civ.P. 12(b)(6). Our unpublished decision in their related appeal is - dispositive. Stjemholm v. Peterson, No. 95-1435, 1996 WL 238926. They also contend the district court erred when it granted the motion to set aside the entry of default. See Fed.R.Civ.P. 55(c) (district court may set aside entry of default for good cause). We find no abuse of discretion. Nikwei v. Ross Sch. of Aviation, Inc., 822 F.2d 939, 941 (10th Cir.1987) ("Setting aside a default entry or default judgment is addressed to the sound discretion of the trial court, and they are given 'a great deal of latitude’ in exercising their discretion.”) (footnote omitted).