United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANT'S MOTION TO TRANSFER
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
Factual and Procedural Background
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,
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.)
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).
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.)
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.)
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.
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. §1391(b)(2) to
support the argument that the only proper venue for this
action is the Middle District, ...