Price, Mikiea v. Adam Auto Sales

Filing 23

ORDER granting defendant Adam Auto Sales' 17 motion to dismiss or transfer this case; denying as moot defendant's 21 motion to strike. This case is transferred to the United States District Court for the Northern District of Illinois. Signed by District Judge James D. Peterson on 12/15/2016. (jef),(ps) [Transferred from Wisconsin Western on 12/15/2016.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MIKIEA L. PRICE,
Plaintiff,
v.

ORDER
16-cv-197-jdp

ADAM AUTO SALES,
Defendant.

Pro se plaintiff Mikiea Price contends that defendant Adam Auto Sales sold her a
defective car. Dkt. 1 and Dkt. 6. The issue before me is where this case should be litigated.
Price lives in the Western District of Wisconsin, but Adam Auto Sales is a citizen of Illinois.
Adam Auto Sales moves to dismiss the case or to transfer it to the Northern District of
Illinois. Dkt. 17. It contends that venue in the Western District of Wisconsin is improper
under 28 U.S.C. § 1391(b). It also moves to strike Price’s sur-reply filed in opposition to the
motion to dismiss. Dkt. 21. I will grant Adam Auto Sales’ motion to dismiss or transfer and
deny its motion to strike as moot. But I will not dismiss Price’s claim. Instead, I will transfer
it to the Northern District of Illinois.

ALLEGATIONS OF FACT
On a motion to dismiss for improper venue, I consider the allegations in the
complaint and evidence submitted with the motion. See Faulkenberg v. CB Tax Franchise Sys.,
LP, 637 F.3d 801, 809-10 (7th Cir. 2011). I will accept as true the allegations in the
complaint unless they are contradicted by evidence. See id. I will resolve all factual disputes

and draw all reasonable inferences in Price’s favor. Id. at 806. The following allegations are
undisputed.
Price is a citizen of Wisconsin. Adam Auto Sales is a citizen of Illinois operating in
Chicago. In 2015, Price bought a used car from Adam Auto Sales. As she drove the car back
to Madison, Wisconsin, the check engine light came on. She took the car to a dealer who told
her that there were problems with the car. She then drove the car back to Adam Auto Sales
for repair. Adam Auto Sales claimed to have fixed the car, but when Price took it back to the
dealer, she learned that it still was not fixed.
This court has jurisdiction over the case under 28 U.S.C. § 1332 based on diversity of
citizenship and the amount in controversy.

ANALYSIS
A. Motion to dismiss or transfer
Adam Auto Sales contends that venue is improper in the Western District of
Wisconsin, and so it has moved to dismiss or transfer the case to the Northern District of
Illinois where, it argues, the case is properly venued. A civil action is properly venued 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). First, I note that venue is proper in the Northern District of Illinois
because Adam Auto Sales resides in that district. But venue may be proper in more than one

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district, 14D Charles Alan Wright et al., Federal Practice and Procedure § 3806 (2013 ed.), so
next I must determine whether venue is proper in the Western District of Wisconsin.
Working backwards, subparagraph (3) of § 1391(b) does not allow for venue in the
Western District of Wisconsin, as venue would be proper in the Northern District of Illinois,
because Adam Auto Sales resides in that district. Nor does subparagraph (2) allow for venue
in the Western District. When determining where a substantial part of the events or
omissions giving rise to the claim occurred, courts in this circuit usually “focus on the
activities of the defendant and not those of the plaintiff.” PKWare, Inc. v. Meade, 79 F. Supp.
2d 1007, 1016 (E.D. Wis. 2000); see also Burke, Warren, Mackeay & Serritella, P.C. v. Tamposi,
No. 10-cv-8267, 2011 WL 5373981, at *6 (N.D. Ill. Nov. 4, 2011) (“Generally, courts in
this circuit, as well as sister circuits, focus on the activities of the defendant, not the plaintiff,
in making venue decisions under § 1391(b)(2).”). Here, Price does not allege that Adam Auto
Sales did anything in Wisconsin: it sold the car to her in Chicago, and it fixed (or claimed to
fix) the car in Chicago. So no substantial part of the underlying events occured in the
Western District of Wisconsin. Although the location of “a substantial part of property that
is the subject of the action” can allow for venue, the car is not the subject of this action—that
is, the issue is not who owns the car, but rather whether Price can recover monetary damages
for events concerning the car. Cf. Vasarhelyi v. Rojas, No. 09-cv-6256, 2010 WL 737589, at
*4 (N.D. Ill. 2010) (concluding venue was proper in the Northern District of Illinois when
“[t]he sole purpose of th[e] case is to resolve ownership” of real property located in the
district”); Strasen v. Strasen, 897 F. Supp. 1179, 1187-88 (E.D. Wis. 1995) (concluding that
venue was proper in the Eastern District of Wisconsin when one of the causes of action was

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for the recovery of property under the jurisdictional supervision of a Wisconsin circuit court
in the district).
Finally, subparagraph (1) does not allow for venue in the Western District of
Wisconsin, either, because Adam Auto Sales does not reside here. Under § 1391(c)(2) and
(d), a corporation like Adam Auto Sales resides in any district “within which its contacts
would be sufficient to subject it to personal jurisdiction.” Here, venue would be proper in the
Western District of Wisconsin if Adam Auto Sales’ contacts with the Western District
“directly relate to the challenged conduct or transaction,” i.e., specific personal jurisdiction,
Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010); or if Adam Auto Sales is “essentially
at home” in the Western District, i.e., general personal jurisdiction, see, e.g., Abelesz v. OTP
Bank, 692 F.3d 638, 654 (7th Cir. 2012). Price has not alleged facts showing that this court
has specific or general jurisdiction over Adam Auto Sales. Adam Auto Sales, a business
operating in Chicago, Illinois, is clearly not “at home” in the Western District of Wisconsin.
And Adam Auto Sales’ alleged contact with the Western District (its sale to Price) is not
significant enough to establish specific personal jurisdiction: Price alleges no facts showing
that Adam Auto Sales “purposefully avail[ed] itself of the privilege of doing business” within
the Western District. Logan Prods., Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir. 1996).
The next question is whether I should dismiss this case for improper venue or transfer
it. Section 1406(a) provides that when venue is improper, the district court “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.” I have “broad discretion to grant or deny a motion to transfer the case”
under § 1406(a). Coté v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986). As explained above,
Price’s claim could have been brought in the Northern District of Illinois. I will transfer the

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case to that district to spare Price, a pro se litigant, the unnecessary burden of refiling her
claim there.
B. Motion to strike
The parties argue extensively about whether Price lived in Chicago when she bought
the car. This is the sole issue addressed in Price’s sur-reply, which Adam Auto Sales has
moved to strike. But “the residence of the plaintiff is irrelevant under Section 1391.” Wright
et al., supra, § 3805. Whether Price lived in Chicago does not change the venue analysis. So I
will deny Adam Auto Sales’ motion to strike as moot.

ORDER
IT IS ORDERED that:
1. Defendant Adam Auto Sales’ motion to dismiss or transfer this case, Dkt. 17, is
GRANTED.
2. Defendants’ motion to strike plaintiff Mikiea Price’s sur-reply, Dkt. 21, is
DENIED as moot.
3. This case is transferred to the United States District Court for the Northern
District of Illinois.
Entered December 15, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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