United States District Court, E.D. Pennsylvania
February 10, 2004.
RONALD BERTRAND, Plaintiff,
SNYDER'S GATEWAY, INC., Defendant
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Plaintiff Ronald Bertrand, a Delaware resident, brings this personal
injury action against Defendant Snyder's Gateway, Inc., a Pennsylvania
corporation with its places of business located in Bedford County,
Pennsylvania, invoking the Court's diversity jurisdiction pursuant to
28 U.S.C. § 1332. In his Complaint, Plaintiff alleges that he was
injured when he slipped and fell at one of Defendant's businesses.
Defendant now moves this Court to dismiss for improper venue pursuant to
Federal Rule of Civil Procedure 12(b)(3), or alternatively, to transfer
this action to the United States District Court for the Western District
of Pennsylvania pursuant to 28 U.S.C. § 1406(a). For the reasons set
forth below, I grant in part and deny in part Defendant's motion and
transfer this action to the United States District Court for the Western
District of Pennsylvania.
Venue in a diversity action is proper under 28 U.S.C. § 1391(a) 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 is
subject to personal jurisdiction at the time the
action is commenced, if there is no district in which
the action may otherwise be brought.
28 U.S.C. § 1391(a) (2003). When a party files a motion pursuant to
Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406, this party
bears the burden of proving that venue is improper. See Myers v. Am.
Dental Assoc., 695 F.2d 716, 724-25 (3d Cir. 1982). Under
28 U.S.C. § 1406(a), "the district court of a district in which is filed
a case laying venue in the wrong . . . district shall dismiss, or in the
interest of justice, transfer such case to any district . . . in which it
could have been brought." 28 U.S.C. § 1406(a) (2003). According to §
1391(c), in a multidistrict state, a corporate defendant, such as
Defendant in the present case, is deemed to reside in any district where
it would be subject to personal jurisdiction if that district were a
separate state. 28 U.S.C. § 1391(c).
In the present case, Defendant Snyder's Gateway, Inc. is incorporated
in the Commonwealth of Pennsylvania and owns three businesses located in
Bedford County, Pennsylvania: a Holiday Inn Express, an Econo Lodge, and
Gateway Travel Plaza, the truck stop where Plaintiff fell on January 3,
2002. (Bittner Aff. at 1.) Accordingly, venue is improper under §
1391(a)(1) in the Eastern District of Pennsylvania and clearly proper
under § 1391(a)(1) in the Western District of Pennsylvania as Defendant
resides in and conducts business solely in the Western District of
In response to Defendant's motion, Plaintiff argues that venue is
proper in this District under
§ 1391(a)(2) because he has received medical treatment in the Eastern
District of Pennsylvania for the injuries he sustained as a result of his
fall at one of Defendant's businesses. Medical treatment, however, is not
considered part of the "events or omissions giving rise to" a personal
injury claim under 28 U.S.C. § 1391(a)(2). See Wisland v. Admiral
Beverage Corp., 119 F.3d 733, 736 (8th Cir. 1997) (holding that in
personal injury action, venue is not proper under § 1391(a)(2) in district
where medical treatment is performed, rather venue is proper in district
where accident giving rise to negligence claim occurred); Smith v.
Fortenberry, 903 F. Supp. 1018, 1020 (E.D. La. 1995) (same); see also
Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.
1994) ("Events or omissions that might only have some tangential
connection with the dispute in litigation are not enough."). In this
case, the substantial events giving rise to Plaintiff's claim occurred on
Defendant's business premises located in the Western District of
Pennsylvania where Plaintiff allegedly slipped and fell. Therefore, venue
is also improper in the Eastern District of Pennsylvania under §
1391(a)(2) and proper in the Western District of Pennsylvania.
Accordingly, as venue is improper in this District, this action must be
dismissed or transferred under § 1406.
Plaintiff contends if the Court considers transferring this action, the
District of Delaware, where he resides and where several of his witnesses
are located, is the appropriate alternative venue.*fn2 Plaintiff,
however, cannot demonstrate that the District of Delaware would be an
for the same reasons as discussed above regarding the Eastern District of
Pennsylvania. Defendant resides and conducts business solely in the
Western District of Pennsylvania, and thus venue is improper in the
District of Delaware under § 1391(a)(1). Similarly, Plaintiff cannot
demonstrate a significant connection to the events underlying this cause
of action in order to satisfy § 1391(a)(2) merely by asserting that
Plaintiff resides in the State of Delaware and some of his treating
physicians have offices there. Thus, venue would be improper in the
District of Delaware. See 28 U.S.C. § 1406 (permitting transfer only to
district in which action "could have been brought").
Finally, in considering whether to dismiss or transfer this action, I
note that the statute of limitations has run on Plaintiff's personal
injury claim under Pennsylvania law, and thus, in the interest of
justice, I transfer this action to the United States District Court for
the Western District of Pennsylvania. 28 U.S.C. § 1406 (providing
discretion to district court to transfer rather than dismiss "in the
interest of justice"); Borel v. Pavichevich, No. 01-1395, 2001 U.S. Dist.
LEXIS 20097, at *11, 2001 WL 1549538, at *3 (E.D. Pa. Dec. 4, 2001)
(using discretionary powers to transfer when statute of limitations
problems would arise from dismissal); Feinzig v. Doyon Servs., No.
97-4638, 1998 U.S. Dist. LEXIS 5419, at *13, 1998 WL 254973, at *5 (E.D.
Pa. Apr. 17, 1998) (same); Peek v. Golden Nugget Hotel & Casino,
806 F. Supp. 555, 560 (E.D. Pa. 1992) (same); Wims v. Beach Terrace Motor
Inn, Inc., 759 F. Supp. 264, 270 (E.D. Pa. 1991) (same). An appropriate
AND NOW, this 10th day of February, 2004, upon consideration of
Defendant's Motion to Dismiss, or in the Alternative, Transfer for
Improper Venue, Plaintiff's reply thereto, and for the foregoing
reasons, it is hereby ORDERED that:
Defendant's Motion to Dismiss, or in the Alternative, Transfer for
Improper Venue (Document No. 4) is GRANTED in part and DENIED in
part as follows.
1. Defendant's Motion to Dismiss is DENIED.
2. Defendant's Motion to Transfer is GRANTED.