where the Plan is managed or supervised.
The Trustees state in the amended complaint that they conduct
the business of the Plan at 4455 Connecticut Avenue, N.W.,
Washington, D.C. Although the Plan has field offices located in
Western Pennsylvania, it appears that such offices are
essentially data gathering centers which operate at the direction
of the Trustees from the Plan's main office in Washington, D.C.
See Kyu Lee Decl. Thus, we find that the District of Columbia
is "the district where the plan is administered" as defined in
Section 1451(d), not the Western District of Pennsylvania.
Accordingly, we find that the Western District of Pennsylvania
is an improper venue for the instant action. As we discuss below,
however, we will not dismiss the Trustees' case but instead
transfer their action to the United States District Court for the
Northern District of West Virginia.
C. Transfer Venue
As previously noted, the defendants' have moved in the
alternative to have the Trustees' case transferred to the United
States District Court for the Northern District of West Virginia
if the court finds that venue is not proper in the Western
District of Pennsylvania, but decides to exercise its discretion
to not dismiss the case.
Pursuant to 28 U.S.C. § 1406(a), the court has discretion
not to dismiss the Trustees' case for improper venue and instead
transfer it to a district where venue would be proper. See
United States v. Miller-Stauch Construction Co., Inc.,
904 F. Supp. 1209, 1214 (D.Kan. 1995) ("Transfer should be the usual
course rather than dismissal)." (citing 15 Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure Section 3827 at 274 (1986)). In the instant case, we
find that the interests of justice is best served by a transfer
rather than dismissal. Dismissal would result in needless expense
and delay by requiring a new filing in another district.
Moreover, the alleged delinquent contributions date back to 1993.
Am.Compl. para. 16. Thus, dismissal might adversely affect the
Trustees if the statute of limitations has run. See
29 U.S.C. § 1451(f) (six and three year statute of limitations).
The Northern District of West Virginia would be a place of
proper venue in the instant case, as the defendants' all reside
in that district. Based on the current record, this district also
appears to be the most convenient. The defendants submitted an
affidavit of their general counsel, James Wall, wherein he states
that all of the defendants' books and records are located in West
Virginia. Defs' Mot.Ex. A. The Trustees, on the other hand, did
not address the issue of convenience. Instead, they steadfastly
maintained that venue was proper in the Western District of
Accordingly, the defendants' motion to dismiss for improper
venue will be denied and the motion to transfer this case to the
United States District Court for the Northern District of West
Virginia will be granted.
An order consistent with this memorandum opinion will be
AND NOW this 2 day of March, 2000, for the reasons stated in
memorandum opinion, IT IS HEREBY ORDERED that:
1) The Defendants' Motion to Dismiss for Lack of
Personal Jurisdiction and Improper Venue, Pursuant
to Fed. R.Civ.P. 12(b)(2) and (3) (Doc. No. 7) is
2) The Defendant's Motion to Transfer Venue to the
United States District for the Northern District of
West Virginia (Doc. No. 7) is GRANTED.
Accordingly, this action shall be transferred to
the United States District Court for the Northern
District of West Virginia and the clerk is directed
to take all necessary steps to effectuate such