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REED v. WEEKS MARINE

August 20, 2001

SEAN REED VS. WEEKS MARINE, INC.


The opinion of the court was delivered by: J. Curtis Joyner, J.

MEMORANDUM AND ORDER

By way of the motion which is now before this Court, Defendant, Weeks Marine, Inc. moves to dismiss Plaintiff's complaint for insufficient service of process or, in the alternative to transfer venue to the District of New Jersey. For the reasons set forth below, the motion is denied.

Background

According to the complaint, Plaintiff, Sean Reed was employed as a seaman by Weeks Marine, Inc. when, on April 10, 2000, he was injured while in the course and scope of his employment. At the time of the accident, Plaintiff was working as a crew member on board Defendant's Scow 222 in the navigable waters of the Chesapeake Bay. Plaintiff contends that the accident occurred solely as the result of the defendant's negligence and, on February 14, 2001, he commenced this civil action pursuant to the Jones Act, 42 U.S.C. § 688, et. seq.

In response, Defendant has filed the instant motion to dismiss for improper service and venue and/or to transfer this action to the U.S. District Court for the District of New Jersey.

Standards Governing Rule 12(b)(3) and 12(b)(5) Motions

District Courts are empowered under Fed.R.Civ.P. Nos. 12(b)(3) and 12(b)(5) to dismiss civil actions for improper venue and for insufficiency of service of process. A motion authorized under Rule 12(b)(5) permits a defendant to challenge any departure from the procedure for serving him with the summons and complaint for purposes of giving notice of the action's commencement. 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2D, § 1353 (2d ed. 1990). Under these provisions, a defendant may object to the plaintiff's failure to comply with the procedural requirements for proper service set forth in or incorporated by Rule 4. Id. In resolving a motion under Rule 12(b)(5), the party making the service has the burden of demonstrating its validity when an objection to service is made. Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-489 (3d Cir. 1993); Addanki v. Defense Logistics Agency Defense Personnel Support Center, 1996 WL 635590 at *1 (E.D.Pa. 1996).

Similarly, the district court of a district in which is filed a case laying venue in the wrong division or district shall be dismiss, or if it be in the interest of justice or, transfer such case to any district or division in which it could have been brought. 28 U.S.C. § 1406(a); Sundance Rehabilitation Corporation v. Senior Living Properties, Inc., 2001 U.S. Dist. LEXIS 8008 (E.D.Pa. 2001). In cases where a motion to dismiss for improper venue is filed, it is the moving party which bears the burden of proving that venue is improper. Myers v. American Dental Association, 695 F.2d 716, 724 (3d Cir. 1982); Freddo v. United States, 2001 U.S. Dist. LEXIS 9316 at *3 (E.D.Pa. 2001); Taylor & Francis Group, PLC v. McCue, 145 F. Supp.2d 627, 629 (E.D.Pa. 2001).

The Jones Act, 46 U.S.C. § 688 provides in pertinent part:

(a) Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply. . . . Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

Although this provision is framed in jurisdictional terms, the U.S. Supreme Court has held that it refers only to venue. Pure Oil Co. v. Suarez, 384 U.S. 202, 203, 86 S.Ct. 1394, 1395, 16 L.Ed.2d 474 (1966); Papaioannoiu v. Hellenic Lines, Ltd., 569 F. Supp. 724, 726 (E.D.Pa. 1983). It incorporates the venue provision of 28 U.S.C. § 1391, which provides in relevant part:

(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

Myers v. The Bank of New York, 1995 U.S. Dist. LEXIS 2789 at *6 (E.D.Pa. 1995). Thus, 28 U.S.C. ยง 1391 permits a corporation to be sued in any judicial district in which it is incorporated or licensed to do business or is doing business in that such judicial district is regarded as the residence of such corporation for venue purposes. Papaioannoiu, 569 F. ...


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