Marks et al v. Otis Elevator Company et al

Filing 26

MEMORANDUM AND ORDER granting 8 OTIS ELEVATOR COMPANY'S MOTION TO DISMISS FOR IMPROPER VENUE, OR IN THE ALTERNATIVE, FOR CHANGE OF VENUE; granting 12 VENETIAN CASINO RESORT, LLC'S MOTION TO DISMISS AND, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE. Signed by District Judge Eric F. Melgren on 6/16/2017. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL MARKS and DOROTHY
MARKS,
Plaintiffs,

v.

Case No. 6:16-cv-01394-EFM-KGS

OTIS ELEVATOR COMPANY and
VENETIAN CASINO RESORT, LLC,
Defendants.

MEMORANDUM AND ORDER
Plaintiffs Michael and Dorothy Marks filed a negligence action against Defendants
Venetian Casino Resort, LLC (“Venetian”) and Otis Elevator Company (“Otis”). This matter
comes before the Court on Defendants’ motion to dismiss for improper venue. Alternatively,
Defendants move to transfer venue for convenience (Doc. 8, 12). For the reasons stated below,
the Court grants Defendants’ motion to dismiss.
I.

Factual and Procedural Background

On May 29, 2016, Plaintiffs were in Las Vegas celebrating their grandson’s 21st
birthday.

While at a casino owned and operated by Venetian, they entered an elevator

manufactured by Otis. The elevator malfunctioned and Plaintiffs were subsequently injured.
Plaintiffs filed a negligence action in this Court, alleging diversity jurisdiction. Plaintiffs are

residents of Kansas. Otis is a for-profit corporation organized under the laws of New Jersey.
Otis operates other elevators in Kansas and maintains a resident agent there. Venetian is a
Nevada limited liability company with its principal place of business and headquarters also in
Nevada. Venetian maintains no place of business or resident agent in Kansas. Otis and Venetian
have each filed a motion to dismiss due to improper venue, or alternatively to transfer venue to
Nevada. The Court now considers these motions in turn.
II.
A.

Legal Standard

Motion to Dismiss for Improper Venue
Under Rule 12(b)(3), defendants may request dismissal for improper venue. Venue is

proper in Kansas under 28 U.S.C. § 1391(b) only when (1) all defendants are residents of
Kansas, (2) a substantial part of the events giving rise to the action occurred in Kansas, or (3)
there is no other venue in which the action could have been brought.
When a defendant challenges venue, the plaintiff bears the burden of showing that venue
is proper.1 In a motion to dismiss for improper venue, the plaintiff is only required to make a
prima facie showing that venue is proper to avoid dismissal; this is the same standard as motions
to dismiss for lack of personal jurisdiction.2 Particularly in this case, an analysis of proper venue
is subsumed into an analysis of personal jurisdiction.
Allegations in a complaint “must be taken as true to the extent they are uncontroverted by
the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes must

1

Value Chain Sols., LLC. v. Quality One Wireless, LLC, No. 09-2586-JAR, 2010 WL 1643690, at *6 (D.
Kan. Apr. 20, 2010); see also Kuenzle v. HTM Sport–Und Freizeitgerate AG, 102 F.3d 453, 456 (10th Cir. 1996).
2

Mohr v. Margolis, Ainsworth & Kinlaw Consulting, Inc., 434 F. Supp.2d. 1051, 1058 (D. Kan. 2006).

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be resolved in the plaintiff’s favor, and the plaintiff’s prima facie showing is sufficient
notwithstanding the contrary presentation by the moving party.”3 “However, only the well pled
facts of the plaintiff’s complaint, as distinguished from mere conclusory allegations, must be
accepted as true.”4
B.

Alternative Motion to Transfer Venue
Transfer of venue is governed by 28 U.S.C. § 1404 or § 1406. Which section governs

depends on whether Plaintiffs’ choice of venue is proper. If the original venue is proper, § 1404
is the governing section; if venue is improper, § 1406 governs.
The relevant portion of § 1404 states: “For the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought . . . .”5 Unless the balance of interests “is strongly in favor of
the movant, the plaintiff’s choice of forum should rarely be disturbed.”6
The relevant portion of § 1406 states: “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.”7 The

3

Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995) (internal quotation marks omitted).

4

Id.

5

28 U.S.C. § 1404(a).

6

Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting William A. Smith Contracting Co. v.
Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972)).
7

28 U.S.C. § 1406(a)(1).

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phrase “if it is in the interest of justice” grants the Court discretion in deciding to dismiss or
transfer an action.8
III.

Analysis

First, the Court will consider whether venue is proper in Kansas. If venue is improper,
the Court will next consider whether transfer of venue is in the interest of justice.
A.

Improper Venue pursuant to 28 U.S.C. § 1391
Plaintiffs can lay proper venue in one of three ways, each of which is correspondingly set

forth in 28 U.S.C. § 1391(b)(1-3). For the purposes of this case, the only dispositive and relevant
subsection is (b)(1).9
1.

Residential Venue - § 1391(b)(1)

Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) if all Defendants are residents of
Kansas. In the present case, both Defendants are businesses. For the purpose of determining
proper venue, if a district court has personal jurisdiction over a business, that business is a
resident of the state where the district resides.10 As such, in this case an analysis of personal
jurisdiction is determinative to proper venue under (b)(1).
In a diversity action, “personal jurisdiction over a nonresident defendant is determined by
the law of the forum state.”11 Under Kansas law, the exercise of personal jurisdiction generally

8

Trujillo v. Williams, 465 F.3d 1210, 1222–23 (10th Cir. 2006).

9

Subsection (b)(2) governs if “a substantial part of the events or omissions giving rise to the claim
occurred” in the forum. The parties agree that all events occurred in Nevada, so this subsection is irrelevant.
Furthermore, (b)(3) is irrelevant since Nevada was a proper optional venue under (b)(2).
10

28 U.S.C. § 1391(c)(2).

11

Caldwell–Baker Co. v. S. Ill. Railcar Co., 225 F. Supp. 2d 1243, 1259 (D. Kan. 2002).

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requires a two-step analysis to determine “whether the exercise of jurisdiction is sanctioned by
the long-arm statute of the forum state and comports with due process requirements of the
Constitution.”12 However, because the Kansas long-arm statute is construed liberally, federal
courts may proceed directly to the due process analysis.13
The due process analysis involves a two-step inquiry.14 First, the plaintiff must show that
the nonresident defendant has “minimum contacts” with the forum state by demonstrating that it
purposefully availed itself of the protections or benefits of the state’s laws, such that it should
reasonably anticipate being haled into court there.15 If the plaintiff successfully establishes such
minimum contacts, the burden shifts to the defendant to prove that the exercise of jurisdiction
would offend “traditional notions of fair play and substantial justice.”16 This second inquiry is
commonly referred to as the “reasonableness” test.
a. Minimum Contacts
The constitutional touchstone of the Due Process Clause is whether the defendant
purposefully established minimum contacts in the forum state.17 This requirement ensures “that
a defendant will not be subject to the laws of a jurisdiction solely as a result of random,

12

Federated Rural Elec. Ins. Corp. v. Kootenai Elec. Coop., 17 F.3d 1302, 1304–05 (10th Cir. 1994).

13

Ablulimir v. U-Haul Co. of Kan., Inc., 2011 WL 2746094, *2 (D. Kan. July 13, 2011).

14

AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008).

15

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980); see also Hanson v. Denckla, 357
U.S. 235, 253 (1958) (“[I]t is essential in each case that there be some act by which the defendant purposefully
avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.”).
16

Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Cal., Solano Cnty., 480 U.S. 102, 113 (1987) (internal
quotation marks and citation omitted); see also AST Sports Sci., Inc., 514 F.3d at 1057.
17

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).

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fortuitous, or attenu
uated contac or of the unilatera activity o another party or a third
cts,
al
of
1
person.”18 “The min
nimum contacts standar may be m in one of two ways: (1) a court may
rd
met
:
t

exercise general jurisdiction if th defendan contacts with the for
he
nt's
rum state are continuous and
systematic; or (2) a court may exercise specific jurisdic
e
ction over a defendant if it purpose
efully
directs ac
ctivities at re
esidents of th forum and the litigati results fr
he
d
ion
rom alleged injuries that arise
t
out of or relate to th
r
hose activities.”19 The Court will a
address spec
cific jurisdic
ction and ge
eneral
jurisdicti in turn.
ion
i.

Spe
ecific Jurisd
diction

In tort cases, “the minim
n
mum contac necessar for specific personal jurisdiction are
cts
ry
l
n
established when th defendan has ‘purp
he
nt
posefully dir
rected’ its activities to
oward the f
forum
jurisdicti and wher the under
ion
re
rlying action is based up activities that arise o of or rela to
n
pon
s
out
ate
the defen
ndant’s contacts with the forum.”20 Under the purposeful d
e
direction tes Plaintiffs must
st,
show tha Defendant expressly intended to act in Kans with kno
at
ts
sas
owledge that the brunt o the
t
of
injury wo
ould be felt there.21 Sp
pecific jurisd
diction is “b ased on a m
matter occurr
ring in the f
forum
state.”22 With regar to this co
rd
onsideration, “although physical pre
,
esence in th forum is not a
he

18

AST Sports Sc Inc., 514 F. at 1058 (int
ci.,
.3d
ternal quotatio marks and ci
on
itation omitted
d).

19

Doering ex re Barrett v. Co
el.
opper Mountai Inc., 259 F. 3d 1202, 1210 (10th Cir. 200
in,
0
01).

20

Id.; see also Merriman v. Cr
M
rompton Corp., 146 P.3d 162 168 (Kan. 20
2,
006).

21

Niemi v. Lassh
hofer, 770 F.3d 1331, 1348 (10th Cir. 2014
d
4).

22

Trierweiler v. Croxton & Tr
rench Holding Corp., 90 F.3d 1523, 1532 (1
d
10th Cir. 1996)
).

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prerequisite to jurisdiction, physical entry into the State—either by the defendant in person or
through an agent, goods, mail, or some other means—is certainly a relevant contact.”23
But it is not enough for Plaintiffs to show that Defendants purposefully directed their
activities toward Kansas.

For the Court to have specific jurisdiction, Plaintiffs must also

demonstrate that its alleged injuries arose from Defendants’ activities in Kansas. The key
inquiry is whether a nexus exists between Defendants’ contacts and Plaintiffs’ cause of action.24
For this determination, the Tenth Circuit has not decided whether to adopt a “but-for” or a
“proximate cause” standard.25 However, it is clear that the “arise out of” requirement is not met
if Plaintiffs would have suffered the same injury even if Defendants had no activity in Kansas.26
In the present case, Venetian’s sole contact with Kansas is that it advertises there. As
explained below, mere advertising is insufficient contact to support general jurisdiction, let alone
specific jurisdiction. Nothing about Venetian’s advertising proves that it purposefully directs its
activities toward citizens of Kansas.

Furthermore, Plaintiffs’ injuries could have occurred

whether or not Venetian advertised in Kansas, thus negating the “arising out of” element.
Because Venetian does not purposefully direct its activities toward citizens of Kansas, and
because Plaintiffs’ injuries did not arise out of Venetian’s contact with Kansas, the Court lacks
specific jurisdiction over Venetian.

23

Application to Enforce Admin. Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 417 (10th
Cir. 1996) (citation omitted).
24

TH Agric. & Nutrition, LLC v. Ace Eur. Grp. Ltd., 488 F.3d 1282, 1291 (10th Cir. 2007).

25

See Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160-61 (10th Cir. 2010); Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1079 (10th Cir. 2008).
26

Kuenzle, 102 F.3d at 457 (10th Cir. 1996) (citing Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d
267, 272 (9th Cir. 1995)).

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Likewise, Pla
L
aintiffs’ inju
uries did no arise out of Otis’s c
ot
t
contacts wit Kansas. The
th
elevator that caused Plaintiffs’ in
njuries is loc
cated in Nev
vada. Otis’s operation o other elev
s
of
vators
as
ant. This act
tion is not based on acti
ivities arisin out of Oti contacts with
ng
is’s
s
in Kansa is irreleva
Kansas; rather, it is based on activities aris
a
sing out of Otis’s conta with Ne
act
evada. Sinc the
ce
“arising out of” elem is clearl lacking, th Court’s d
o
ment
ly
he
determination of “purpos
n
seful directio is
on”
unnecess
sary. The Court lacks specific jur
C
risdiction ov both De
ver
efendants be
ecause Plain
ntiffs’
action is not based on activities arising out of Defendants contacts w Kansas.
n
a
f
s’
with
.
ii.

Ge
eneral Jurisd
diction

General juri
isdiction exi when th defendant contacts with the fo
ists
he
t’s
orum state a so
are
“G
‘continuo and sys
ous
stematic’ tha the state may exerci personal jurisdiction even when the
at
ise
n
n
claims ar unrelated to the defen
re
ndant’s cont
tacts with th forum sta 27 For t Court to have
he
ate.”
the
general jurisdiction, “the defendant’s contac with the s
cts
state must b greater tha those req
be
an
quired
for speci jurisdicti
ific
ion.”28 To determine whether cont
d
w
tinuous and systematic b
business con
ntacts
support the exercise of general ju
t
o
urisdiction, courts should consider th following
c
d
he
g:
(1 whether the corporati solicits business in t state thro
1)
ion
b
the
ough a local office or
l
ag
gents; (2) wh
hether the co
orporation se
ends agents i
into the state on a regula basis to
e
ar
so
olicit busine (3) the extent to wh
ess;
e
hich the corp
poration hol itself out as doing
lds
t
bu
usiness in th forum stat through advertisemen listings o bank acco
he
te,
a
nts,
or
ounts; and
(4 the volum of busines conducted in the state by the corpo
4)
me
ss
d
oration.29

27

Kluin v. Am. Suzuki Motor Corp., 56 P.3 829, 835 (K
r
3d
Kan. 2002) (ci
iting Trierweil 90 F.3d at 1533
ler,
t
(10th Cir.1
1996)) (internal quotation marks omitted)).
l
28

Doe v. Nat’l Med. Servs., 97 F.2d 143, 14 (10th Cir. 19
M
74
46
996).

29

Trierweiler, 90 F.3d at 1533
9
3.

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“Moreover, the mere placement of advertisements . . . cannot be regarded as ‘continuous
and systematic’ in nature.”30

“The Supreme Court has established this as being a high

threshold.”31 In summary, “[a] court may assert general jurisdiction over foreign (sister-state or
foreign-country) corporations to hear any and all claims against them when their affiliations with
the state are so ‘continuous and systematic’ as to render them essentially at home in the forum
state.”32
In the landmark Supreme Court case Helicopteros, “a foreign corporation negotiated a
contract in Texas, forwarded checks out of a Texas bank, bought goods and services from a
Texas manufacturer, and sent personnel to Texas for training; still, the corporation's contacts
were insufficient to allow Texas to assert jurisdiction.”33 In the present case, Venetian simply
advertised in Kansas. Venetian is not a Kansas corporation and has no registered agent in the
state. It operates no casinos, resorts, or hotels in Kansas. It keeps no bank accounts in Kansas,
nor does it maintain a local office there. Other than trying to attract Kansans—and presumably
citizens of every other state—to Nevada, Venetian conducts no business in the state of Kansas.
These contacts are not “continuous and systematic” and Venetian is not “at home” in Kansas.
Therefore, the Court does not have general jurisdiction over Venetian.
On the contrary, the Court can assert general jurisdiction over Otis.

Otis operates

countless elevators throughout Kansas, two of which reside in the courthouse that this Court

30

Doering, 259 F.3d at 1210.

31

Trierweiler, 90 F.3d at 1544 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
415–17 (1984)).
32

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (emphasis added).

33

Trierweiler, 90 F.3d at 1544 (citing Helicopteros, 466 U.S. at 415).

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occupies. Otis also maintains a resident agent in Kansas. These contacts rise to the level of
“systematic and continuous,” and therefore the Court has general jurisdiction over Otis.
b. Fair Play and Substantial Justice
Typically, after establishing Defendants’ minimum contacts, the Court must determine
whether exercising jurisdiction over Defendants would offend “traditional notions of fair play
and substantial justice.”34 At this point, the burden would shift to Defendants to “present a
compelling case that the presence of some other considerations would render jurisdiction
unreasonable.”35 However, in the present case, the “reasonableness” analysis is unnecessary.
Although it has personal jurisdiction over Otis, the Court lacks personal jurisdiction over
Venetian. Therefore, for the purposes of analyzing venue, Venetian is not a “resident” of
Kansas. As such, the Court need not conduct the “reasonableness” analysis.
Venue is improper since Plaintiffs have failed to establish that all Defendants are
residents of Kansas pursuant to 28 U.S.C. § 1391(b)(1), which is the statute’s only subsection
relevant to this case. Resultantly, the Court grants Defendants’ motion to dismiss for improper
venue. The justification for dismissal as opposed to transferal is explained below.
B.

Motion to Transfer Venue pursuant to 28 U.S.C. § 1406
Because venue is improper, the Court now turns to § 1406 to determine whether transfer

is warranted. “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

34

World-Wide Volkswagen, 444 U.S. at 292 (citation omitted).

35

Dudnikov, 514 F.3d at 1080 (quoting Pro Axess, Inc. v. Orlux Distrib., Inc., 428 F.3d 1270, 1280 (10th
Cir. 2005)).

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district or division in which it could have been brought.”36 The Supreme Court has further
clarified the intent of the statute, stating:
The problem which gave rise to the enactment of the section was that of avoiding
the injustice which had often resulted to plaintiffs from dismissal of their actions
merely because they had made an erroneous guess with regard to the existence of
some elusive fact of the kind upon which venue provisions often turn. Indeed,
this case is itself a typical example of the problem sought to be avoided, for
dismissal here would have resulted in plaintiff's losing a substantial part of its
cause of action under the statute of limitations merely because it made a
mistake.37
“The language and history of § 1406 . . . show a congressional purpose to provide as
effective a remedy as possible to avoid precisely this sort of injustice.”38 “[W]e have interpreted
the phrase ‘if it is in the interest of justice’ to grant the district court discretion in making a
decision to transfer an action or instead to dismiss the action without prejudice.”39 “[W]here the
court determines that it lacks jurisdiction and the interests of justice require transfer rather than
dismissal, ‘[t]he correct course . . . [is] to transfer the action.’”40 “Moreover, transfer would only
be proper if the original action was filed in good faith rather than filed after ‘plaintiff either
realized or should have realized that the forum in which he or she filed was improper.’”41 The

36

28 U.S.C. § 1406(a).

37

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962).

38

Id.

39

Trujillo, 465 F.3d at 1222–23.

40

Id. at 1223 (quoting Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524, 1526 (10th Cir. 1987))
(emphasis added).
41

Dagen v. Book, 249 F.R.D. 362, 367 (D. Colo. 2008) (quoting Trierweiler, 90 F.3d at 1544 (10th Cir.

1996)).

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Court must evaluate the possibility of transferring a claim, and provide reasons if it otherwise
chooses to dismiss the claim.42
It is not in the interest of justice to transfer this case, therefore the Court grants
Defendants’ motion to dismiss.

Integral to the Court’s decision is the Nevada statute of

limitations on Plaintiffs’ negligence claim; it has not run, nor is it close to running. In Nevada,
the statute of limitations for negligence claims is two years from the date of the events giving
rise to the action.43 Therefore, Plaintiffs have until May 29, 2018, to file a new action in Nevada.
Plaintiffs can easily bring an action in that forum, as they originally should have. As cited
above, previous courts have indicated that the statute of limitations is an important factor in
weighing “the interest of justice.” Because that prominent factor presents no issue in this case, it
is not in the interest of justice to transfer the action.
Additionally, Plaintiffs allege no mistake of fact in improperly filing this action in
Kansas. While there is no evidence of bad faith on the part of the Plaintiffs in choosing Kansas
as a forum, they have nevertheless failed to show that venue is proper. Furthermore, Plaintiffs’
counsel should have anticipated that venue in Kansas would be improper due to the Court’s lack
of general jurisdiction over Venetian.
Although Nevada is a proper venue where this case could have been brought, it is not in
the interest of justice to transfer this case to Nevada. After weighing the aforementioned factors,
the Court dismisses this case for improper venue.

42

Trujillo, 465 F.3d at 1223.

43

Nev. Rev. Stat. Ann. § 11.190 (West 2017).

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IV.

Conclusion

Venue is proper if all the Defendants are residents of the forum state, if a substantial part
of the events giving rise to the action occurred in the state, or if no other state is a proper venue.
Since Defendants are businesses, their residency in Kansas hinges on whether the Court has
personal jurisdiction over them.

The Court lacks personal jurisdiction over Venetian, and

therefore Venetian is not a resident of Kansas. Furthermore, it is undisputed that all the events
giving rise to the action occurred in Nevada, and as such, Nevada is an alternatively proper
venue. Finally, it is in the interest of justice to dismiss this case rather than transfer it to Nevada.
IT IS THEREFORE ORDERED that Otis’s motion to dismiss for improper venue, or
alternatively transfer venue, (Doc. 8) is hereby GRANTED.
IT IS FURTHER ORDERED that Venetian’s motion to dismiss for improper venue, or
alternatively transfer venue, (Doc. 12) is hereby GRANTED.
IT IS SO ORDERED.
Dated this 16th day of June, 2017.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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