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BASIC, INC. v. NORFOLK SOUTHERN

March 11, 1988

Basic, Incorporated
v.
Norfolk Southern



The opinion of the court was delivered by: KELLY

 J. M. KELLY, J.

 This court has jurisdiction pursuant to 28 U.S.C. § 1331 in that the action arises under 49 U.S.C. § 11707, and 28 U.S.C. § 1332.

 Defendant maintains that venue is improper under 49 U.S.C. § 11707(d)(2)(A)(ii), which specifically sets forth the venue provision applicable to actions for recovery for damages brought under the Interstate Commerce Act embodied in 49 U.S.C. § 10101 et seq. This venue provision provides:

 
(2)(A) A civil action under this section may only be brought-
 
(i) against the originating rail carrier, in the judicial district in which the point of origin is located;
 
(ii) against the delivering rail carrier, in the judicial district in which the principal place of business of the person bringing the action is located if the delivering rail carrier operates a railroad or a route through such judicial district, or in the judicial district in which the point of destination is located; and
 
(iii) against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.

 49 U.S.C. § 11707(d)(2)(A).

 Defendant maintains, and plaintiff does not dispute, that defendant was operating as a delivering carrier when it transported the pallets. Defendant asserts that plaintiff cannot maintain its cause of action in this judicial district since neither it nor its operating subsidiaries own or operate a railroad or a route through this judicial district and the point of destination was Hammond, Indiana, not the Eastern District of Pennsylvania. *fn1"

 In response, plaintiff asserts that venue in this district is proper under the general federal venue provision 28 U.S.C. § 1391 since Norfolk Southern "does business" in this district. This court disagrees.

 28 U.S.C. § 1391 provides:

 
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law. ...

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