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).
*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.