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