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Dalton v. Atchison

United States District Court, E.D. Arkansas

June 23, 2016

Harry D Dalton, Plaintiff,
v.
Wade Atchison, et al., Defendants.

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge

         Pending 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.

         I. Background

         On 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.)

         On January 27, 2016, Defendant removed the action to this Court based on diversity jurisdiction.[1] (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' arguments.

         II. Discussion

         a. Legal Standards

         A 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)).

         b. Venue in the District of Arizona is improper.

         Defendant 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 following:

(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 is located;
(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.

         "The 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 ...


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