The opinion of the court was delivered by: John R. Padova, J.
Plaintiff CoActiv Capital Partners, Inc. ("CoActiv") brings this diversity action pursuant to Pennsylvania common law against Defendants John Feathers, both individually and doing business as Premier Laser Image ("PLI"), Debra Feathers, and Ghyasuddin Syed ("Syed"). CoActiv's claims arise out of the Defendants' failure to make payments on an equipment lease. Presently before the Court is Syed's Motion to Transfer Venue. For the following reasons, Syed's Motion is denied.
In November 2006, John Feathers, doing business as PLI, entered into an equipment lease (the "Lease") with Partners Equity Capital Company LLC ("PECC"). (Compl. ¶ 8; see also Lease, Ex. A to Compl.) The Lease required PLI to make regular monthly payments to PECC. (Compl. ¶ 9.) The Lease further contained a guaranty provision that obligated its three signatories, John Feathers, Debra Feathers and Syed, to absolutely and unconditionally make the Lease payments on behalf of PLI. (See Lease at 1.) Debra Feathers and Syed also executed a Personal Guaranty, in which they again unconditionally promised to make prompt payment of all PLI's obligations under the Lease. (See Compl. ¶¶ 19, 26, 33; see also Personal Guaranty, Ex. E to Compl.) Both the Lease and the Personal Guaranty contained forum selection clauses designating the courts of Pennsylvania as convenient venues for any suits arising out of the agreements.*fn1 (See Lease at 1; Personal Guaranty at 2.)
After execution of the Lease, PECC delivered the equipment to PLI and perfected its security interest in the equipment by recording a UCC financing statement in Texas. (Compl. ¶¶ 10-11.) PECC subsequently assigned its title and interest in the Lease and equipment to CoActiv. (Id. ¶ 13.) In July 2008, PLI defaulted on the Lease by failing to make its monthly payment. (Id. ¶ 14.) As a consequence of its default, PLI was obligated to make accelerated payments of the remaining balance due on the Lease, which it failed to do. (Id. ¶¶ 14-15.) CoActiv thereafter demanded payment from PLI, and from John Feathers, Debra Feathers and Syed as guarantors, but none has paid the balance due, totaling $113,475.39. (Id. ¶¶ 16-17, 21-24, 28-31, 35-38.) CoActiv commenced this action just a few months later.
Syed asks that we transfer the case to the Southern District of Texas for two reasons. First, he contends that we should transfer the case pursuant to 28 U.S.C. § 1406(a) because the Southern District of Texas is the only proper forum under the pertinent venue statute, 28 U.S.C. § 1391(a).
Alternatively, he argues that we should transfer the case pursuant to 28 U.S.C. § 1404(a) because the balance of the factors we must consider in resolving a request to transfer venue strongly favors sending this case to Texas.
When a defendant challenges the plaintiff's chosen venue, and we determine that the chosen venue is improper, we must either dismiss the case or transfer it "to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). If, on the other hand, we determine that venue is proper in this District, we may transfer the case "to any other district or division where it might have been brought" "[f]or the convenience of parties and witnesses, [and] in the interest of justice . . . ." Id. § 1404(a). The defendant bears the burden of showing that the chosen venue is improper or, in the alternative, that transfer to another district is justified for other reasons. See Chester v. Beard, Civ. A. No. 07-4742, 2008 WL 2310946, at *5 (E.D. Pa. June 2, 2008) (citing Fellner v. Phila. Toboggan Coasters, Inc., 2005 WL 2660351, at *1 (E.D. Pa. Oct. 18, 2005)); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
A. Transfer Pursuant to 28 U.S.C. § 1406(a)
In this case, Syed argues that venue is improper in this District because all Defendants reside in the Southern District of Texas, and the Southern District of Texas is the only forum in which a substantial part of the events giving rise to CoActiv's claims arose. We do not reach the merits of Syed's venue challenge, however, as we find that Syed has waived his right to argue that this District is an improper venue.
A defendant may challenge venue in a Rule 12(b)(3) motion, a responsive pleading, or, in limited circumstances, an amended responsive pleading. See Fed. R. Civ. P. 12(h)(1). To properly raise a venue challenge by motion, the defendant must file his motion before he files any permitted responsive pleading. See Fed. R. Civ. P. 12(b) (requiring that a motion asserting improper venue "be made before pleading if a responsive pleading is allowed"). A defendant may also challenge venue by asserting his challenge in either his responsive pleading or in an amended responsive pleading that is filed as a matter of course pursuant to Federal Rule of Civil Procedure 15(a)(1). See Fed. R. Civ. P. 12(h)(1)(B) ("A party waives [a venue defense] by . . . failing to . . . include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course."); Fed. R. Civ. P.15(a)(1) ("A party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar.").
In this case, Syed did not file the instant Motion challenging venue until after he filed both a pro se Answer and a subsequent counseled Amended Answer.*fn2 Moreover, Syed first invoked his venue defense in his Amended Answer, which he did not file as a matter of course, but rather with leave of court more than 20 days after serving CoActiv with his pro se Answer. Consequently, we find that Syed has failed to timely challenge the overall propriety of venue in this District, either by motion or in a responsive pleading, and has thus waived any such challenge. ...