September 19, 2005.
NATIONWIDE MUTUAL INS. CO., Plaintiff,
NATIONAL RV HOLDINGS, INC., doing business as NATIONAL RV, FREIGHTLINER CUSTOM CHASIS CORPORATION, CATERPILLAR, INC. ENGINE DIVISION a wholly-owned subsidiary of CATERPILLAR, INC., INTERMOUNTAIN SPORTS, INC., doing business as INTERMOUNTAIN RV, WYOMING MACHINERY COMPANY, AL-MAR RV, INC., doing business as KEYSTONE RV CENTER, Defendants, v. WYOMING MACHINERY COMPANY, Cross Claimant, v. NATIONAL RV HOLDINGS, INC., FREIGHTLINER CUSTOM CHASIS CORPORATION, CATERPILLAR, INC. ENGINE DIVISION a wholly-owned subsidiary of CATERPILLAR, INC., INTERMOUNTAIN SPORTS, INC., WYOMING MACHINERY COMPANY, AL-MAR RV, INC., Cross Defendants, v. WYOMING MACHINERY COMPANY, Third-Party Plaintiff, v. FLEXATUBE INDUSTRIES, INC., Third-Party Defendant.
The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
This is a product liability action. Plaintiff commenced this
action in diversity alleging that the 2001 Nation RV Tradewinds
motorhome purchased by subrogees James and Desire Boyd was defective and/or malfunctioned when it caught fire eight
miles from the Boyd's residence in Fairfield, Pennsylvania.
Pending before this Court is the motion to dismiss or, in the
alternative, transfer for improper venue, filed by defendant
Al-Mar RV, Inc. Defendant argues that the Western District of
Pennsylvania is an improper venue for this action, because a
substantial part of the events or omissions giving rise to
plaintiff's claim occurred in the Middle District of
Pennsylvania, Harrisburg Division, and therefore, this claim
should be dismissed and/or transferred, pursuant to
Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1406(a). Plaintiff has filed a
response consenting to the motion to transfer of this case to
Middle District of Pennsylvania, Harrisburg Division.
After reviewing the facts as alleged by plaintiff, which the
Court is required to accept as true, this Court finds that a
substantial part of the events giving rise to plaintiff's claim
occurred within the boundaries of the Middle District of
Pennsylvania. Specifically, the motorhome caught fire in
Fairfield, Pennsylvania; plaintiff's subrogees took the motorhome
to defendant Keystone RV in Greencastle, Pennsylvania for various
repairs and services between October 2001 and October 2003; and,
plaintiff's subrogees currently reside in Franklin County,
Pennsylvania. Accordingly, the facts as asserted by plaintiff
establish that, pursuant to 28 U.S.C. § 1391(a)(2), venue is
proper in the Middle District of Pennsylvania, not the Western
District of Pennsylvania.
Section 1406(a) of the United States Code provides that where,
as here, a plaintiff has chosen an improper forum for his or her
claims, the district court where the claim was originally filed
shall dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have been
brought. In the interests of justice and judicial economy, IT IS HEREBY
ORDERED that this case be transferred to the Middle District of
Pennsylvania, Harrisburg Division, where venue is proper.
Defendant's motion to dismiss and/or transfer venue (doc. no. 11)
is GRANTED IN PART AND DENIED IN PART.
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