Watts et al v. Soloymi, Inc. et al

Filing 24

MEMORANDUM Opinion and Order: For the reasons stated below, the motion to dismiss or transfer for improper venue 15 is granted. The Clerk is directed to transfer this case forthwith to the Eastern District of Arkansas. Signed by the Honorable Ronald A. Guzman on 9/9/2021. Mailed notice. (kp, )

Case: 1:21-cv-02101 Document #: 24 Filed: 09/09/21 Page 1 of 3 PageID #:202

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Diane Watts, et al.,
Plaintiffs,
v.
Soloymi, Inc., and Theron Busby,
Defendants.

)
)
)
)
)
)
)

No. 21 C 2101
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the motion to dismiss or transfer for improper venue [15] is
granted. The Clerk is directed to transfer this case forthwith to the Eastern District of Arkansas.
STATEMENT
Plaintiffs allege several claims against Theron Busby and Soloymi, Inc. (“Soloymi”),
after Busby, who was allegedly driving a truck on behalf of Soloymi, rear-ended a car. Barbara
Watts, who is now deceased, was driving the car, and Diana Farr, also deceased, was a
passenger. Plaintiffs are Diane Watts, executor of the estate of Barbara Watts, and Brooke
Kemp, executor of the estate of Diana Farr. Soloymi, which is a citizen of Illinois, moves to
dismiss for improper venue or, in the alternative, to transfer the case to the Eastern District of
Arkansas. Busby moves to dismiss for lack of personal jurisdiction.
Under the federal venue provision, 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.
Although Plaintiffs cite § 1392(1) in their complaint as the basis for venue in the
Northern District of Illinois, they acknowledge that § 1392(1) is inapplicable here because all
defendants are not residents of Illinois; Plaintiffs state in their response to Soloymi’s motion to
dismiss for improper venue that they should have cited § 1392(2). According to Plaintiffs, their

Case: 1:21-cv-02101 Document #: 24 Filed: 09/09/21 Page 2 of 3 PageID #:203

reliance on § 1392(2) is appropriate because the truck at issue is “a substantial part of property
that is the subject of this action and is situated in this district”; Soloymi, to whom the truck was
purportedly registered, is a citizen of Illinois and has its principal place of business in this
district; and Soloymi was negligent in this district in its failure to properly hire, train, supervise,
and discipline Busby.
Under Federal Rule of Civil Procedure (“Rule”) 12(b)(3), pursuant to which Soloymi
seeks dismissal for improper venue, “the Court assumes the plaintiff’s allegations in the
complaint are true unless they are contradicted by the defendant’s affidavits.” Hangxiao Che v.
Daimler Trucks N. Am., LLC, No. 21-CV-180-JPG, 2021 WL 3129418, at *2 (S.D. Ill. July 23,
2021). The test for a determination of proper venue under § 1391(b)(2) “is not whether a
majority of the activities pertaining to the case were performed in a particular district, but
whether a substantial portion of the activities giving rise to the claim occurred in a particular
district.” Allstate Life Ins. Co. v. Stanley W. Burns, Inc., 80 F. Supp. 3d 870, 877 (N.D. Ill.
2015). Plaintiffs bear the burden of establishing that venue is proper. Marzano v. Proficio
Mortg. Ventures, LLC, 942 F. Supp. 2d 781, 787 (N.D. Ill. 2013).
Plaintiffs sue Soloymi and Busby for wrongful death and negligence. It is undisputed
that the accident occurred in Arkansas. While Plaintiffs assert that the truck is situated in this
district, Defendants submit Busby’s affidavit, in which he attests that he owned the truck at issue
at all relevant times, the truck always remained in Busby’s possession in Texas when he was not
using it to haul loads, the truck was declared a total loss after the accident, and its last known
location was in Arkansas. (Busby Aff., Dkt. # 23-1, ¶¶ 2-4.) Plaintiffs do not rebut this
evidence; thus, their assertion that the truck’s location was in Illinois is misplaced. Plaintiffs
contend that that the truck was registered to Soloymi, Soloymi was the lessee of the truck, and
Busby operated the truck under the authority and control of Soloymi. These assertions, however,
are unsupported by any evidence. Nor is the Court persuaded by Plaintiffs’ reliance on their
allegations that Soloymi was negligent in hiring, training, supervising, and disciplining Busby,
which Plaintiffs conclusorily assert “would have occurred in Illinois.” Again, Plaintiffs’
statements are unsupported by any evidence; moreover, Busby’s affidavit states that he drives
locally in Texas and does not travel to Illinois. 1 The Court finds that Plaintiffs have not met their
burden of establishing proper venue in this district.
Plaintiffs ask the Court to allow them to conduct venue-related discovery. “The decision
to allow limited discovery into venue rests within this Court’s discretion.” Sanderling Mgmt.
Ltd. v. Snap Inc., No. 20 C 4627, 2021 WL 843428, at *5 (N.D. Ill. Mar. 5, 2021). As an initial
matter, the Court notes that Plaintiffs cite no authority whatsoever in their discussion on venue
and make only a half-hearted attempt to establish their burden of demonstrating that venue is
proper here. It is not the Court’s role to make a party’s arguments for it. More importantly,
Plaintiffs’ conclusory assertions do not persuade the Court that additional discovery would alter
the Court’s conclusion. Id. (rejecting request for discovery related to venue where “Plaintiff
d[id] not suggest that [the defendant’s] declarations or disclosures [were] false, nor d[id] it
identify any concrete information that it need[ed] to support its venue arguments”).
1

Busby has filed a motion to dismiss for lack of personal jurisdiction, which the Court does not
address here.
2

Case: 1:21-cv-02101 Document #: 24 Filed: 09/09/21 Page 3 of 3 PageID #:204

“Rule 12(b)(3) permits dismissal for improper venue, as does 28 U.S.C. § 1406(a)[,] . . . .
[b]ut § 1406(a) also permits the Court, in the interest of justice, to transfer a case in the wrong
district to another district where it could have been brought.” Hangxiao Che, 2021 WL 3129418,
at *4; 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.”). “Generally, courts prefer
transferring a case to a jurisdiction where venue is proper as opposed to dismissing it.”2 Id. The
parties agree that venue is proper in the Eastern District of Arkansas; accordingly, the Court
transfers the case there. The Clerk is directed to transfer this case forthwith to the Eastern
District of Arkansas.
__________________________

Date: September 9, 2021

Ronald A. Guzmán
United States District Judge

2

A transfer under 28 U.S.C. § 1404, as Defendants request in the alternative, is permitted only if
the Court determines that venue is proper in the Northern District of Illinois, which it has not.
3