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SIMON v. WARD

January 3, 2000

MICHAEL B. SIMON, PLAINTIFF,
V.
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 DEFENDANTS.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.

MEMORANDUM

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.

I. BACKGROUND

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 this district.

II. ANALYSIS

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 characterized a 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 [5] [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 [5] [c].

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 ...


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