United States District Court, E.D. Arkansas
Honorable John Z. Boyle United States Magistrate Judge
before the Court is Defendant's Motion to Dismiss
Plaintiff's Complaint on Improper Venue Grounds or, in
the Alternative, to Transfer Venue pursuant to 28 U.S.C.
§ 1406(a). (Doc. 7.) Defendant requests the Court
dismiss this matter because venue is not proper in the United
States District Court for the District of Arizona pursuant to
28 U.S.C. § 1391(b). Alternatively, Defendant requests
the Court transfer this case to the United States District
Court for the Eastern District of Arkansas. As detailed
below, none of the requirements of § 1391(b) are met
here and, therefore, venue is not proper in this Court. In
the interests of justice, the Court will transfer this case
to the United States District Court for the Eastern District
of Arkansas, where the case could have been brought.
December 21, 2015, Plaintiff, proceeding pro se,
filed his Complaint in Arizona state court, asserting claims
against Defendant for breach of contract and intentional
infliction of emotional distress. (Doc. 1-1 at 4-12.)
Specifically, Plaintiff asserts that Defendant breached the
parties' insurance contract when Defendant, an agent of
Allstate, failed to notify Plaintiff of the possible risks in
changing Plaintiff's "Builder's Risk
Policy" to a home owner's policy, and subsequently
allowed Plaintiff's policy to lapse. (Id.
¶¶ 12, 15-16, 22, 25.) Plaintiff asserts that he
obtained the Builder's Risk Policy to insure a
construction project at his property located in Dover,
Arkansas. (Id. ¶ 21.) According to Plaintiff,
on May 24, 2013, Plaintiff suffered a neck injury on the
property while operating a piece of heavy equipment, and was
transported to a hospital in Littlerock, Arkansas.
(Id. ¶ 24.) During Plaintiff's three-day
stay at the hospital, electrical wire was stolen from the
construction site. (Id. ¶ 25.) Plaintiff claims
that Allstate adjusters denied Plaintiff's claim for
theft. Plaintiff asserts Defendant offered to personally pay
half of the cost to replace the wire, but never paid
Plaintiff that amount. (Id.) Plaintiff further
asserts that Defendant failed to assist Plaintiff in
reporting the theft to the police. (Id.) On December
18, 2013, Plaintiff, on a recommendation by his doctor in
Arkansas, underwent surgery in Los Angeles, California for
his injury. (Id. ¶¶ 25-26.)
January 27, 2016, Defendant removed the action to this Court
based on diversity jurisdiction. (Doc. 1.) On February 4,
2016, Defendant filed his Motion to Dismiss on Improper Venue
Grounds or, in the Alternative, Motion to Change Venue to the
Eastern District of Arkansas, pursuant to 28 U.S.C.
§1406(a). (Doc. 7.) Plaintiff opposes the Motion and
asserts that, due to his medical condition and financial
status, and his domicile in Arizona, venue is proper in the
United State District Court for the District of Arizona.
(Doc. 13 at 2.) Below, the Court addresses the parties'
defendant may challenge venue pursuant to Rule 12(b)(3) of
the Federal Rules of Civil Procedure and 28 U.S.C. §
1391. If venue is improper, the Court must either dismiss the
case or, "if it be in the interest of justice, transfer
[the] case to any district or division in which it could have
been brought." See 28 U.S.C. § 1406(a).
The decision whether to dismiss the case or transfer it is
within the Court's discretion. In re Hall, Bayoutree
Associates, Ltd., 939 F.2d 802, 804 (9th Cir. 1991).
However, "the general preference . . . is for the case
to be transferred instead of dismissed altogether."
Kewlmetal Inc. v. Bike Builders Bible, Inc.,
2:15-cv-01008 JWS, 2015 U.S. Dist. LEXIS 168362, at *2 (D.
Ariz. Dec. 15, 2015) (citing See Brodt v. Cty. of
Harford, 10 F.Supp. 3d 198, 203 (D.D.C. 2014), and
Abrams Shell v. Shell Oil Co., 165 F.Supp.2d 1096,
1103 (C.D. Cal. 2001)).
Venue in the District of Arizona is improper.
argues that the Court should dismiss this case because venue
in the District of Arizona is not proper pursuant to 28
U.S.C. § 1391(b). Section 1391(b) provides the
(b) Venue in general. A civil action may be brought in-(1) a
judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
(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) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
venue statutes are generally intended to protect a defendant
from being forced to defend in an unfair or inconvenient
forum." Shell v. Shell Oil Co., 165 F.Supp.2d
1096, 1106 (C.D. Cal. 2001). The "[p]laintiff has the
burden of proving that venue is proper in the district in
which the suit was initiated." Hope v. Otis Elevator
Co., 389 F.Supp.2d 1235, 1243 (E.D. Cal. 2005) (citing
Airola v. King, 505 F.Supp. 30, 31 (D. Ariz. 1980)).
When deciding a challenge to venue, the pleadings need not be
accepted as true, and the ...