Doshier v. Twitter, Inc.

          ORDER

          Kristine G. Baker United States District Judge

         Before the Court is a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3), or, alternatively, to transfer venue under 28 U.S.C. § 1404(a) filed by defendant Twitter, Inc. (“Twitter”) (Dkt. No. 3). Plaintiffs William F. Doshier and dotStrategy, Co. (“dotStrategy”) responded in opposition to the motion (Dkt. No. 5). Twitter filed a reply in further support of its motion (Dkt. No. 11). Plaintiffs filed a surreply (Dkt. No. 18). For the following reasons, in the interest of justice, the Court grants the motion to transfer venue (Dkt. No. 3).

         I. Procedural Background

         Plaintiffs filed their complaint initially in the Circuit Court of Faulkner County, Arkansas (Dkt. No. 2). Twitter removed this action to this Court on September 21, 2018 (Dkt. No. 1). Twitter then filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3) or, alternatively, to transfer venue under 28 U.S.C. § 1404(a) (Dkt. No. 3). Plaintiffs oppose the motion. Twitter asserts that venue is improper in this Court and that the Court should either dismiss this case or transfer it to the Northern District of California pursuant to 28 U.S.C. § 1404(a). Plaintiffs requested limited jurisdictional discovery regarding venue, but this Court by separate Order denied that request (Dkt. Nos. 15, 26). For the following reasons, the Court determines that this case should be transferred to the Northern District of California.

         II. Analyzing Venue

         Federal Rule of Civil Procedure 12(b)(3) permits a party to raise the defense of improper venue by motion. In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true. Ambiguities must be resolved in favor of the nonmoving party. See Dakota Indus., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991). The moving party has the burden of establishing that venue is improper. United States v. Orshek, 164 F.2d 741, 742 (8th Cir. 1947).

         A. Venue Generally

         “[V]enue of all civil actions brought in district courts of the United States” is governed by 28 U.S.C. § 1391, which states:

         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.

28 U.S.C. § 1391(b).

         Venue is proper in any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action only if there is no district in which an action may otherwise be brought as provided in § 1391. This means that the Court must determine whether venue is appropriate under subsections (1) and (2) of § 1391(b) before looking to subsection (3) to determine if venue is proper. Further, where there are multiple claims involved, unless the doctrine of “pendent venue” applies, venue must be proper as to each claim. See Bredberg v. Long, 778 F.2d 1285, 1288 (8th Cir. 1985); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 528 (8th Cir. 1973).

         With respect to § 1391(b)(1), the venue statute provides that a “natural person . . . [is] deemed to reside in the judicial district in which that person is domiciled, ” and “an entity with the capacity to sue and be sued . . . [is] deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(1), (2). The court looks to the time the claim arose to ...