This case is plainly distinguishable from Gavigan. GNLV and GNRM have not conducted any of the activities considered relevant by that court. Neither GNLV nor GNRM actively advertised in Pennsylvania. There also is no evidence that they participated in joint ventures, extensive promotional campaigns, or had agents who made visits to Pennsylvania. Accordingly, this Court holds that it may not properly exercise either general or specific personal jurisdiction over the non-resident corporate defendants GNLV and GNRM.
The defendants have moved to dismiss for lack of venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure and have alternately moved for the Court to transfer this case to the District of Nevada pursuant to 28 U.S.C. § 1404(a).
Although the Court finds that venue is improper in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(a),
it will deny the defendants' motion to dismiss or to transfer pursuant to 28 U.S.C. § 1404(a), since that statutory provision is applicable only where venue is proper in the forum court. Rose v. Franchetti, 713 F. Supp. 1203, 1213 (N.D. Ill. 1989), aff'd, 979 F.2d 81, 1992 U.S. App. LEXIS 26909 (7th Cir. 1992). However, the Court will transfer the case to the District of Nevada pursuant to 28 U.S.C. § 1406(a) which provides that if venue is improper a district court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Id. This Court deems it to be in the interest of justice, to save filing fees and to avoid potential statute of limitations problems, to transfer the case to the United States District Court for the District of Nevada, a jurisdiction where the action could have originally been brought.
Finally, the motion of GNLV seeking dismissal under Rule 12(b)(6), based on a failure to state a claim upon which relief can be granted, will be denied without prejudice. This is a matter which should be decided by the transferee court in Nevada.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 806 F. Supp. 555.
AND NOW, this 6th day of November, 1992, for the reasons set forth in the foregoing Memorandum, it is hereby
ORDERED that defendants' Motion to Dismiss for lack of personal jurisdiction and venue under Rule 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure is DENIED.
It is FURTHER ORDERED that the defendants' Motion to Dismiss GNLV Corp., d/b/a Golden Nugget Hotel and Casino, under Rule 12(b)(6) of the Federal Rules of Civil Procedure is DENIED without prejudice.
It is FURTHER ORDERED that the defendants' Motion to Transfer pursuant to 28 U.S.C. § 1404(a) is DENIED, but in the interests of justice the Court ORDERS this action transferred to the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 1406(a).
The Clerk of this Court is directed to transfer to the Clerk of the United States District Court for the District of Nevada a certified copy of this Order and all of the pleadings and papers on file relating to this action.
BY THE COURT:
Harvey Bartle, III