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McMahon v. Arsenberger Trucking Co. Inc.

United States District Court, E.D. Pennsylvania

August 11, 2017

ARTHUR MCMAHON & JOANNE MCMAHON
v.
ARSENBERGER TRUCKING CO. INC. & ROMAN BEST

          MEMORANDUM RE: DEFENDANT'S MOTION TO TRANSFER VENUE

          BAYLSON, J.

         In this case, Plaintiffs Arthur McMahon and Joanne McMahon, were involved in a motor vehicle accident with the Defendant, Roman Best, which they allege caused them both severe and permanent personal injuries, as well as future suffering and loss of consortium. Presently before the Court is Defendants' motion to transfer the Plaintiffs' personal injury and loss of consortium claims to the Middle District of Pennsylvania pursuant to Rule 12(b)(3). For the reasons stated below, Defendants' motion is denied without prejudice.

         I. Factual and Procedural Background

         Taking all facts averred in Plaintiff's complaint as true, they are as follows. On July 12, 2015, Plaintiffs were involved in a motor vehicle accident on Interstate Highway Route 84 in Pennsylvania with Best. (ECF 1, Compl. ¶¶ 6, 10.) At the time of the accident, Plaintiff Joanne McMahon was operating their vehicle, while her husband Plaintiff Arthur McMahon was in the passenger's seat. (ECF 1, Compl. ¶ 7.) Plaintiffs were rear-ended by a large truck driven by Best while he was acting within the scope of his employment and with the permission of his employer, Defendant Arsenberger Trucking Co. Inc. (ECF 1, Compl. ¶¶ 8, 9.)

         On March, 17, 2017, Plaintiffs filed a complaint alleging severe and permanent injuries as a result of the accident. (ECF 1.) Plaintiffs further allege that as a result of the injuries suffered by their respective spouse they will suffer the loss of usual services and consortium in the future. (ECF 1.) Defendants subsequently filed a motion to transfer venue to the United States District Court for the Middle District of Pennsylvania on March 22, 2017. (ECF 6.) Plaintiffs filed response to the Defendants' motion to transfer venue on June 5, 2017. (ECF 7.) Defendants filed a reply on June 19, 2017. (ECF 9.)

         II. Legal Standard

         In considering a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the court must generally accept as true the allegations in the complaint, although the parties may submit affidavits in support of their positions. See Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005) (citing Myers v. Am. Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982). The court may examine facts outside the complaint to determine proper venue, but must draw all reasonable inferences and resolve all factual conflicts in the plaintiff's favor. See Id.; Quarles v. Gen. Inv. & Dev. Co., 260 F.Supp.2d 1, 8 (D. D.C. 2003). The Third Circuit has determined that "the movant (the defendant) bears the burden of demonstrating that venue is improper." Simon v. Ward, 80 F.Supp.2d 464, 467 (E.D. Pa. 2000) (citing Myers, 695 F.2d at 724). The defendant also bears the burden of establishing that a venue transfer is warranted. Id. at 470. “Although §1404(a) gives a district court the discretion to decide a motion on a case-by-case basis, these motions are not to be granted liberally." Pro Spice, Inc. v. Omni Trade Group, Inc., 173 F.Supp.2d 336, 339 (E.D. Pa. 2001). Furthermore, "in ruling on defendant's [transfer] motion the plaintiff's choice of venue should not be lightly disturbed." Id. (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)) (internal citations omitted).

         IV. Analysis

         A. Parties' Contentions

         Defendants' first argument in support of their motion to transfer venue is that the only proper venue for this litigation is the Middle District. (ECF 6-1, Defs.' Mem. in Supp. of Mot. at 5.) [hereinafter “Defs.' Mem.”] While a plaintiff's choice of venue is to be given great deference, it is given less deference when it is not the plaintiff's home forum. (ECF 9, Defs.' Reply at 3.) Venue is proper in the Middle District under §1391(b)(2) because all of the events which gave rise to the suit occurred there. (ECF 6-1, Defs.' Mem. at 5.) Specifically, the scene of the accident, all emergency responders, medical service agencies, and hospital witnesses are all located in the Middle District. (Id.) Defendants further suggest that all of the aforementioned witnesses to the accident are more than 100 miles from this courthouse in the Eastern District of Pennsylvania. Therefore, the Court will be unable to compel the witnesses for a trial, hearing, or deposition under F.R.C.P 45(c)(1)(A) which states that a witness can only be commanded by subpoena “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” (Id. at 6.) Defendants contend that these witnesses are essential to their defense because the witnesses will speak to the seriousness and permanency of the Plaintiffs' injuries. (Id.) Moreover, to require these public servants to travel will be a substantial burden onto them because they would lose income and incur the travel expense. (ECF 9, Defs.' Reply at 4.) Further, Defendants assert that pursuant to §1391(c) this Court does not have jurisdiction over Best because he neither resides nor has sufficient contacts with the Eastern District. (ECF 6-1, Defs.' Mem. at 7.) Finally, Best's residence is 77 miles closer to the Middle District than to the Eastern District. (ECF 9, Defs.' Reply at 6.)

         Plaintiffs, on the other hand, argue that venue is proper in the Eastern District under §1391(b) and (c). (ECF 7-4, Pls.' Mem. in Opp. of Mot. at 5.) [hereinafter “Pls.' Mem.”] More specifically, under §1391(b) a civil action may be brought in “a judicial district in which any defendant resides, if all the defendants are residents of the State in which the district is located. (Id.) When the defendant is a corporation, as is the case here, it shall be considered to reside in any judicial district in which it would be subject to personal jurisdiction. (Id.) Further, a defendant corporation is subject to general personal jurisdiction in the location of incorporation and the principal place of business. (Id. at 12.) Therefore, since Arsenberger is a Pennsylvania corporation, Plaintiffs contend that it is subject to general personal jurisdiction in the Eastern District, as is Best. (Id.) Plaintiffs contend that because venue is proper in the Eastern District, a transfer analysis must be done under §1404(a) rather than §1406, the latter of which is used when original venue is improper. (Id. at 13.) Moreover, Plaintiffs note that the Court must consider both public and private interests to determine if the convenience of the parties, witnesses, and the interest of justice are benefitted from transferring the action to another venue. (Id. at 13-14.) Of import are additional physical and monetary burdens placed on the Plaintiffs if they are required to travel to Scranton over Philadelphia. (Id. at 15.) Lastly, the overall convenience to the Plaintiffs and their witnesses support the chosen venue of the Eastern District. (Id. at 15-16.) Plaintiffs argue that while they have provided names and locations of their intended witnesses to demonstrate the inconvenience the Middle District would impose, the Defendants have been less than forthcoming with providing actual names, home addresses or work addresses of their potential witnesses. (Id. at 15.)

         B. Discussion

         Before the Motion to Transfer Venue can be evaluated under Rule 12(b)(3), the Court must first determine if venue is proper in the Eastern District. Manning v. Flannery, No. 09-03190, 2010 U.S. Dist. LEXIS 1091, at *12 (E.D. Pa. Jan. 6, 2010). As a preliminary matter, the Court must note that “a motion to dismiss for improper venue is not an attack on jurisdiction but only an affirmative dilatory defense.” Myers, 695 F.2d at 724; see also Thrivest Legal Funding, LLC v. Gilberg, No. 16-03931, 2017 U.S. Dist. LEXIS 50183, at *14 (E.D. Pa. Apr. 3, 2017). While reasonable minds have differed on which party bears the burden of proof, this Court holds that the defendant who asserted the affirmative defense has the burden of proof. Compare Pendergrass-Walker v. Guy M. Turner, Inc., No. 16-5630, 2017 U.S. Dist. LEXIS 95444, at *4 (E.D. Pa. June 21, 2017) (holding defendant bears the burden of proof to show venue is improper), and Mullen v. Norfolk S. Ry., No. 13-6348, 2014 U.S. Dist. LEXIS 48153, at *25 (E.D. Pa. Apr. 8, 2014) (Baylson, J.) (holding movant defendant bears the burden of establish venue should be transferred), with Johnson v. Gabriel Bros., No. 13-07415, 2014 U.S. Dist. LEXIS 87600, at *5 (E.D. Pa. June 27, 2014) (holding it is the plaintiffs burden to establish sufficient contacts to support their choice of venue), and Gaskin v. Pennsylvania, No. 94-4048, 1995 U.S. Dist. LEXIS 4272, at *5 (E.D. Pa. Mar. 28, 1995) (holding it is the plaintiff's burden to prove their choice of venue is proper). Ultimately, the plaintiff need not show that the chosen venue is proper because “venue rules are rules of convenience for defendants, and [the] defendant therefore has a responsibility of asserting its privilege.” Simon, 80 F.Supp.2d at 467. With this in mind, we first look to 28 U.S.C. §1391 to determine if venue is proper.

         Any analysis to determine if venue is improper under 28 U.S.C. §1406, or in the alternative should be transferred pursuant to 28 U.S.C. §1404(a), must begin by assessing if the current venue is proper. Thrivest, 2017 U.S. Dist. LEXIS 50183, at *18. In support of their motion, Defendants largely rely on 28 U.S.C. ยง1391(b)(2) to support the argument that the only proper venue for this action is the Middle District, ...


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