KLINE et al v. GEMINI TRANSPORT, LLC et al

Filing 22

OPINION and ORDER Denying Defendants Gemini Transport, LLC and Amarildo Zere's Motion to Dismiss and Granting Defendants' Motion to Transfer Venue to the Southern District Court in Indiana 7 . Signed by District Judge Gershwin A. Drain. (LHos) [Transferred from Michigan Eastern on 12/13/2016.]

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW KLINE, et al.,
Case No. 16-cv-13157

Plaintiffs,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
GEMINI TRANSPORT, LLC, et al.,

UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS

Defendants.
/

OPINION AND ORDER DENYING DEFENDANTS GEMINI TRANSPORT, LLC AND
AMARILDO ZERE’S MOTION TO DISMISS AND GRANTING DEFENDANTS’ MOTION
TO TRANSFER VENUE TO THE SOUTHERN DISTRICT COURT IN INDIANA [7]
I. INTRODUCTION
Plaintiffs Matthew Kline and Mark Kline, individually and on behalf of his
minor daughter, Hayden Kline, brought this action on August 31, 2016 against
Defendants Gemini Transport, LLC, Amarildo Zere, FedEx Ground Package
System, Inc, and Delbert E. Lallathon, Jr. Plaintiffs brought negligence and
vicarious liability claims against Defendants for injuries incurred in a vehicle
collision in Indiana.
This motion is fully briefed. After reviewing the parties’ submissions, the
Court concludes that a hearing is not necessary and that the motion can be properly
decided on the papers. See E.D. Mich. LR 7.1(f)(2). For the reasons stated below,

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Defendants’ Motion is DENIED as to dismissal and GRANTED with respect to
transfer to the Southern District of Indiana.

II. BACKGROUND FACTS
According to Plaintiffs’ Complaint, on February 14, 2015, Plaintiff Matthew
Kline was driving southbound on I-69 in or near Washington Township, Indiana
with Plaintiffs Mark and Hayden Kline as passengers. Dkt. No. 1, p. 3 (Pg. ID No.
3). Defendant Delbert Lallathon, Jr. was driving a FedEx Ground Package System,
Inc. tractor-trailer southbound on I-69 when he attempted to stop for a vehicular
collision in front of him. Id. at 3–4. Defendant Amarildo Zere was driving a
Gemini Transport, LLC tractor-trailer southbound on I-69. Id. at 4. Defendant Zere
also attempted to stop for the same crash ahead. Id. While attempting to avoid the
crash ahead, Defendants Lallathon and Zere struck each other. Id. Defendant Zere
then slid to the right, hitting the Kline vehicle, forcing it off the roadway and into a
ditch. Id. The accident caused Matthew Kline, Mark Kline and Hayden Kline to
sustain multiple injuries, including but not limited to face, neck, head and back
injuries. Id. at 2.

III. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(3), a defendant may move
to dismiss the plaintiff’s complaint for improper venue. If a case is filed in an

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improper venue, the 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.”
28 U.S.C. § 1406(a).
Venue is proper in “a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located.” Id.
§ 1391(b)(1) (emphasis added). A corporate defendant is “deemed to reside . . . in
any judicial district in which such defendant is subject to the court’s personal
jurisdiction with respect to the civil action in question.” Id. § 1391(c)(2). Venue is
also proper in “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.” Id. § 1391(b)(2).
“On a motion to dismiss for improper venue, the plaintiff bears the burden of
proving that venue is proper.” Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F.
Supp. 2d 1014, 1017 (E.D. Mich. 2002). The Court must draw all reasonable
inferences and resolve factual conflicts in favor of the plaintiff. Id. Where venue is
improper, the Court has the discretion to decide whether the action should be
dismissed or transferred to an appropriate court. See 28 U.S.C. § 1406.

IV. DISCUSSION
In the present case, three of the Defendants may be considered residents of
Michigan, while one is a resident of Illinois. See Dkt. No. 1, pp. 2–3 (Pg. ID No.
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2–3). Accordingly, venue in the Eastern District of Michigan is not proper under
Section 1391(b)(1). Furthermore, since the events in question occurred entirely
within Indiana, venue in the Eastern District of Michigan is not proper under
Section 1391(b)(2).
Plaintiffs do not dispute that not all Defendants reside in the Eastern District
of Michigan.1 See Dkt. No. 22. Plaintiffs also do not dispute Defendants’ assertion
that “a substantial part of the events or omissions giving rise to the claim occurred”
in the Southern District of Indiana, where the accident took place. See id. Instead,
Plaintiffs argue that Defendants Gemini Transport, LLC and Amarildo Zere, as
Michigan residents, may not object to improper venue on behalf of Defendant
Delbert E. Lallathon, Jr., an Illinois resident. Id. at 2 (Pg. ID No. 117). Defendant
Lallathon concurred with Defendants’ Motion and did not waive his affirmative
defense of improper venue. Dkt. No. 21, p. 2 (Pg. ID No. 121).
Plaintiffs further argue that if venue is improper for one defendant, the Court
should split the case into two separate actions, based on the same facts, keeping
one case in the Eastern District of Michigan and transferring the claim against
Defendant Lallathon to the Southern District of Indiana. Dkt. No. 20, p. 3 (Pg. ID
No. 118). Federal statutes do not explicitly provide such a remedy in cases of
1

Unfortunately, the Court must also note the repeated failure of parties to
comply with Local Rule 5.1(a)(3), requiring 14 point type size for all text and
footnotes in papers submitted to the Court. See Dkt. No. 20, 21. Future papers not
in compliance with the Local Rules may be stricken.
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improper venue, instead stating that cases are to be dismissed or transferred to an
appropriate venue. See 28 U.S.C. § 1406. Plaintiffs rely on an out-of-circuit case
from 1978, wherein the Ninth Circuit interpreted Section 1391(b) to only apply to
“indispensable defendants.” Anrig v. Ringsby United, 603 F.2d 1319, 1323–24 (9th
Cir. 1978). Plaintiffs have not provided any authority indicating that the Sixth
Circuit has adopted this position.
Furthermore, Anrig did not provide for the course of action suggested by
Plaintiffs: severing the case into two. Rather, Anrig stated that “the nonindispensable party should be dismissed out in order to preserve proper venue for
the remaining indispensable defendants.” Id. at 1324. Although Plaintiffs allege
that Defendant Lallathon is not an indispensable party, they do not propose to
dismiss Defendant Lallathon from the suit. Dkt. No. 20, p. 2 (Pg. ID No. 117).
Furthermore, all Defendants seek to or concur with transfer to a proper venue
under Section 1391(b)(2), including non-resident defendant. Thus, it appears that
Defendants are entitled to transfer of venue to the Southern District of Indiana
based on improper venue.
“To permit a situation in which two cases involving precisely the same
issues are simultaneously pending in different District Courts leads to [a]
wastefulness of time, energy and money . . . Moreover, such a situation is
conducive to a race of diligence among litigants for a trial in the District Court

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each prefers.” Cont’l Grain Co. v. The FBL-585, 364 U.S. 19, 26 (1960). See also
15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
& Procedure § 3854 (4th ed. 2016) (noting that transfer is warranted under
§ 1404(a)’s broad “interest of justice” reference when the transfer would prevent
“multiplicity of litigation as a result of a single transaction or event.”).
Accordingly, the Court finds that it is in the interests of judicial efficiency to
keep all Defendants together in one case, rather than simultaneously proceeding
with two cases based on the same operative facts in different districts. See, e.g.,
Bryan v. Hyatt Corp., No. 07-CV-11955, 2008 WL 205246, at *3 (E.D. Mich. Jan.
24, 2008) (transferring case to jurisdiction where injury occurred where defendants
were not all residents of the same state).
V. CONCLUSION
For the reasons discussed above, IT IS HEREBY ORDERED that
Defendants’ Motion to Dismiss is DENIED and Defendants’ Motion to Transfer
Venue to the Southern District Court in Indiana is GRANTED [7].
The Court will transfer the case to the United States District Court for the
Southern District of Indiana.
IT IS SO ORDERED.
Dated: December 13, 2016
Detroit, MI

/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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