Walls et al v. Action Resources Inc et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 11/1/2017. (JLC)
2017 Nov-01 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARY WALLS, an Individual;
MELISSA WALLS, as next friend of )
JOSHUA D. DEFORD, a Minor,
) Case No.: 1:17-CV-900-VEH
ACTION RESOURCES, INC., a
Domestic Corporation; and MICAH )
LEAVINS, an Individual,
Before the Court is a Motion To Dismiss or Transfer Venue (the “Motion”),
filed pursuant to 28 U.S.C. § 1406(a), by the Defendants, Action Resources, Inc.
and Micah Leavins. (Doc. 6). For the reasons stated herein, the motion will be
GRANTED in part and this case will be TRANSFERRED to the United States
District Court for the Eastern District of Tennessee.
FACTS ALLEGED IN THE COMPLAINT
The Complaint sets out the following factual basis for the claims in this case:
7. On March 11, 2016, the Plaintiffs were traveling South on Interstate
75 in Bradley County, Tennessee.
8. Defendant Leavins was operating a commercial motor vehicle owned
and/or operated by Action Resources on I-75 South directly behind the
vehicle occupied by Walls and DeFord (referred to hereinafter
collectively as “Plaintiffs”).
9. At all times herein mentioned, the Plaintiffs’ vehicle was operated in
a reasonable and prudent manner, with due caution and regard for the
motor vehicle laws of the State of Tennessee.
10. Leavins failed to keep a proper lookout, failed to maintain a safe
distance, failed to properly manage his speed, failed to properly manage
his space, and/or failed to observe the Plaintiffs’ vehicle and otherwise
violated the Rules of the Road and/or Federal Motor Carrier Safety
Regulations when his commercial vehicle collided with the Plaintiffs’
11. The Plaintiffs sustained personal injuries directly and proximately
caused by the wrongful acts and/or omissions of the Defendants.
(Doc. 1 at 2, ¶¶7-11). Arising from these facts, the Plaintiffs allege negligence
against both Defendants (Counts One and Two), and “gross, willful, wanton and
reckless negligence” against both Defendants (Count Three).
STANDARD FOR EVALUATING VENUE
It has been noted that, in evaluating whether venue is proper:
“ ‘[t]he plaintiff must present only a prima facie showing of venue.’ ”
Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th
Cir.1990) (quoting Delong Equipment Co. v. Washington Mills Abrasive
Co., 840 F.2d 843, 845 (11th Cir.1988)). A district court may decide
whether a plaintiff's choice of forum is proper by reference to factual
allegations made in the plaintiff's complaint and supplemental evidence
in the form of affidavits submitted by both parties, and the court need
not conduct an evidentiary hearing. Id. The court will assume that facts
alleged in the plaintiff's complaint are true if they are not controverted
by the defendant. Id. But, even if the defendant submits evidence that
conflicts with the plaintiff's factual allegations and evidence, “the court
is inclined to give greater weight to the plaintiff's version of the
jurisdictional facts and to construe such facts in the light most favorable
to the plaintiff.” Id. Essentially, the prima-facie standard, the
determination of which may be made on the pleadings, boils down to
one of ‘plausibility’; to withstand a motion to transfer on the basis of
plaintiff's venue of choice being improper, the plaintiff must show only
that the venue chosen is plausibly proper. Cf. Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“To survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’
”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). If the plaintiff meets this light standard,
then the burden shifts to the defendant, as the movant, to show why
venue is improper. Canal Ins. Co. v. Yelder, 2010 WL 2640241 at *1
(M.D.Ala. June 22, 2010) (Thompson, J.) (“As [defendant] Harco has
objected to the venue under 28 U.S.C. § 1406(a), it bears ‘the burden of
establishing that venue is improper.’ ”) (quoting 17 James Wm. Moore,
et al., Moore's Federal Practice § 110.01[c] (3d ed.2012)).
Goodwyn, Mills & Cawood, Inc. v. Black Swamp, Inc., 956 F. Supp. 2d 1323,
1326–27 (M.D. Ala. 2012).
As noted, the instant motion is brought pursuant to 28 U.S.C. § 1406(a)
The district court of a district in which is filed a case laying venue in
the wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could
have been brought.
Id. at § 1406 (emphasis added). Thus, the express wording of the statute
contemplates dismissal first, and transfer only if it is in the “interest of justice”.
Either way, the Court’s analysis begins with an examination as to whether venue is
Venue Is Not Appropriate in the Northern District of Alabama
The venue statute states:
(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
(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).
In this case, “a substantial part of the events or omissions giving rise to the
claim” 28 U.S.C. § 1391(b)(2)1, occurred in the Southern Division of the Eastern
District of Tennessee, which encompasses Bradley County, Tennessee, the place
where the tragic accident occurred. The Plaintiffs contend that venue is proper in
28 U.S.C. § 1391(b)(1) does not apply since all defendants do not reside in the State of
Alabama. (Doc. 1 at 1, ¶¶1-4).
the Northern District of Alabama under 28 U.S.C. § 1391(b)(2). (See doc. 14 at 4).
They argue that “Plaintiff’s complaint states claims directly against Action
Resources, Inc. for substantial acts and omissions that necessarily will have
occurred in the Northern District of Alabama.” (Doc. 14 at 4). Plaintiffs seem to
imply that merely because Defendant Action Resources is “headquartered” in the
Northern District of Alabama, the actions giving rise to their direct claims must
have occurred in the Northern District of Alabama. (See doc. 14 at 4).
However, no facts are alleged to have occurred in Alabama. Indeed, the
only connection which this case has to Alabama is that it is where Defendant
Action Resources is located.2 Venue is proper in the Southern Division of the
Eastern District of Tennessee.3
Transfer To the Eastern District of Tennessee Is Appropriate
Since the Northern District of Alabama is an improper venue, the next issue is
to determine whether to dismiss or transfer this case under 28 U.S.C. § 1406(a). The
In their response to the Motion, the Plaintiffs state that Action’s “substantial acts and
omissions . . . necessarily will have occurred in the Northern District of Alabama.” (Doc. 14 at
4). However, “[s]tatements by counsel in briefs are not evidence.” Skyline Corp. v. N.L.R.B., 613
F.2d 1328, 1337 (5th Cir. 1980). There is authority indicating that Plaintiffs could have actually
submitted affidavits to help establish venue. Goodwyn, Mills & Cawood, Inc. v. Black Swamp,
Inc., 956 F.Supp.2d 1323, 1326-27 (M.D. Ala. 2012). However, the Plaintiffs chose not to.
Because the Court found a district in which venue is appropriate, it does not consider
subsection 3 of the venue statute.
Defendants argue, in the alternative, that the case should be transferred to Tennessee
in “the interest of justice.” (See doc. 15 at 6).4 Plaintiffs make no alternative argument
that the case should be transferred to Tennessee in the event venue is not proper. (See
doc. 14 at 4).
In this case, the “interest of justice” counsels this Court to transfer the case to
the Eastern District of Tennessee. Because the accident occurred in Tennessee, much
of the evidence and witnesses related to the accident are likely to be located in
Tennessee. (See doc. 15 at 3); (see also doc. 1 at ¶ 7-11). Also, given the thin briefing
on whether the Tennessee statute of limitations would bar the action,5 this Court
declines to determine that transferring the case to the Eastern District of Tennessee
is futile. For the aforementioned reasons, the case will be TRANSFERRED by
DONE and ORDERED this the 1st day of November, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
The Defendants prefer outright dismissal. (See doc. 6 at 1).
Most of the briefing is dedicated to Alabama conflict of laws principles.
Since this Court is dismissing the case for improper venue, the Court need not address
what statute of limitations the Court would apply under Alabama conflict of laws principles.
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