The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
Defendants William F. Ward, Allen Castor, Barbara Descher,
Richard Kipp, Gary Lucht, Benjamin Martinez, Nicholas Muller, Sean
Ryan, Michael Webster, Conway Bushey, James W. Riggs, and Martin
F. Horn (collectively, "defendants") have filed a motion to
dismiss this § 1983 action for improper venue pursuant to
Fed.R.Civ.P. 12(b)(3). Upon consideration of defendants' motion
(Document No. 8), plaintiff's response (Document No. 9),
defendants' reply, and the pleadings and evidence submitted
therewith, defendants' motion will be denied.
Plaintiff Michael B. Simon was a prisoner in the custody of
the Pennsylvania Department of Corrections. He alleges in his
Complaint (filed Mar. 29, 1999) that defendants, who are members
and secretaries of the Pennsylvania Board of Probation and Parole
("Parole Board"), and the Commissioner of the Pennsylvania
Department of Corrections, failed to credit him for time served,
miscalculated his sentence, and refused to grant him a parole
hearing, thereby causing him to be incarcerated for a longer
period than was appropriate under his sentence. Defendants are
sued in their individual capacities only.
Plaintiff filed this action here, in the Eastern District of
Pennsylvania. Defendants claim that venue is improper under the
general venue statute, 28 U.S.C. § 1391, and that the action
should be dismissed or transferred to the Middle District of
Pennsylvania pursuant to 28 U.S.C. § 1404 or 1406. Plaintiff
argues that at least one of the defendants resides in the Eastern
District of Pennsylvania, and that venue is therefore proper in
On a motion such as this one, in which the evidentiary record
is particularly sparse, the most significant decision a court can
make is to identify the party that bears the burden of proof.
Strangely, neither plaintiff nor defendant addresses this question
directly. Thus, as a threshold matter, I endeavor to determine
which party bears the burden of proof on a motion to dismiss for
improper venue under Rule 12(b)(3).
This proves no simple task, as there is some confusion on
this question among district courts in this circuit. A number of
district court cases, relying on Lieb v. American Pacific Int'l,
Inc., 489 F. Supp. 690, 696 (E.D.Pa. 1980), hold that plaintiff
bears the burden of proving that venue is proper. See Rotondo
Weirich Enter., Inc. v. Global Employment Solutions, Inc., 1999 WL
1077078 at 5 (E.D.Pa. Nov. 22, 1999) ("[T]he Court's decision today does
not relieve Plaintiff of the burden of proving those facts necessary to
support personal jurisdiction and venue by a preponderance of the
evidence . . ."); Britamco Underwriters, Inc. v. Raymond E. Wallace
Special Productions, Inc., 56 F. Supp.2d 542, 545 (E.D.Pa. 1999)
("when venue is attacked, it is the plaintiff who bears the burden
of showing proper venue"); Nowicki v. United Timber Co.,
1999 619648 at 1 (E.D.Pa. Aug. 12,
1999) ("The plaintiffs have met their burden of demonstrating that
venue is proper in the Eastern District of Pennsylvania.");
Freedman v. Anderson Group, Inc., 1996 WL 548141 at
2 (E.D.Pa. Sept. 23, 1996) ("Once a defendant
properly raises a jurisdictional defense . . . the plaintiff bears
the burden of demonstrating that venue was properly laid in this
district."); Gaskin v. Pennsylvania, 1995 WL 154801
at 1 (E.D.Pa. Mar. 28, 1995) ("Plaintiffs have the
burden of proving that their choice of venue is proper.").
Another flock of cases, relying on Myers v. American Dental
Ass'n, 695 F.2d 716 (3d Cir. 1982), cert. denied, 462 U.S. 1106,
103 S.Ct. 2453 (1983), declare that defendant bears the burden of
showing that venue is improper. See Superior Precast, Inc. v.
Safeco Ins. Co. of America, No. 99-2816, 1999 U.S. Dist. LEXIS
16160, at *7 (E.D.Pa. Oct. 4, 1999) ("Contrary to Safeco's
suggestion, as the defendant, it bears the burden of proving its
affirmative defense and showing that venue is improper on a motion
to dismiss."); Nazareth Nat'l Bank & Trust Co. v. E.A.
International Trust, No. 98-6163, 1999 U.S. Dist. LEXIS 11390, at
*11 n. 3 (E.D.Pa. July 26, 1999) ("In any event, the burden is on
the defendants to demonstrate that venue is improper and they
clearly have not done so."); Mizrahi v. Great-West Life Assurance
Co., No. 99-819, 1999 U.S. Dist. LEXIS 9098, at *5 (E.D.Pa. June
17, 1999) ("The burden is on the movant to demonstrate that venue
is improper."); Bowdoin v. Oriel, No. 98-5539, 1999 U.S. Dist.
LEXIS 6832, at *16 (E.D.Pa. May 5, 1999) ("[W]e find that
defendant has not met his burden of proving that venue is improper
in the Eastern District of Pennsylvania.").*fn1
The Court of Appeals for the Third Circuit appears to have
spoken only once on this matter in the last 20 years, in Myers v.
American Dental Association. In that case, the court
motion to dismiss for improper venue under Rule 12
(b)(3) as an "affirmative dilatory defense," not an attack on
jurisdiction,*fn2 and held that the movant (the defendant)
bears the burden of demonstrating that venue is improper. See
Myers, 695 F.2d at 716. The majority ascribed prior decisions
that placed the burden of showing venue on plaintiff to a
misguided meshing of venue and jurisdiction analyses.*fn3
However, the dissent argued that venue, like jurisdiction is a
"dilatory," not "exculpatory," defense that "touch[es] only the
court's legal authority to entertain the complaint." Myers, 695
F.2d at 732-33 (Garth, J., concurring and dissenting). Because
such dilatory defenses do not go to the merits of the case, the
dissent continued, plaintiff has the burden of proving the court
should hear the case.*fn4
The controversy over which party bears the burden of
establishing venue rages outside the Third Circuit, as well. Two
distinguished resources on federal practice differ over the
question. In Moore's Federal Practice, at § 110.01  [c] (3d
ed. 1999), Professor Moore states that the "correct" view is that
defendants have the burden of showing that venue is improper.
Professors Wright and Miller suggest that the "better view, and
the clear weight of authority" is that in venue, as in
jurisdiction, plaintiff should bear the burden. See Charles Alan
Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice
and Procedure § 3826 (2d ed. 1986).
Policy arguments weigh in on both sides of the debate.
Placing the burden of establishing venue on plaintiff is
consistent with the jurisdictional notion that plaintiff must make
a threshold showing that the case belongs in the particular court
in which the suit is brought. See Myers, 695 F.2d at
732-33.*fn5 On the other hand, placing the burden on defendant
seems proper, as venue rules are rules of convenience for
defendants, and defendant therefore has a responsibility of
asserting its privilege. See Moore's Federal Practice, at § 110.01
Ultimately, I believe that the argument in favor of defendant
bearing the burden carries the day. Venue is not the identical
(or even fraternal) twin of jurisdiction; rather it is an
affirmative defense and a privilege held by defendants, which
exists for the benefit of defendants. See VE Holding Corp. v.
Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990).
Venue must be raised by defendant and may be waived by defendant.
Therefore, I see no reason why defendant should not be required
make an evidentiary showing that venue is improper to reap the
benefits of dismissal or transfer.*fn6
Regardless, this Court is bound by the rule set forth by the
Court of Appeals in Myers: defendant bears the burden of
establishing that venue is improper.*fn7 Therefore, Lieb,
489 F. Supp. 690, and its progeny, which place the burden on
plaintiff, are no longer valid in this circuit. With the burden
resting squarely on the ...