Aramark Educational Services, LLC v. V/Gladieux Enterprises, Inc., et al

Filing 9

ORDER denying 3 Motion to Dismiss. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARAMARK EDUCATIONAL
SERVICES, LLC.,
Plaintiff,

Case No. 12-12060

v.

Hon. Lawrence P. Zatkoff

TIMOTHY M. GLADIEUX, and
V/GLADIEUX ENTERPRISES, INC.,
Defendants.
__________________________________________/
OPINION AND ORDER
AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on January 25, 2013, 2013.
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendant’s Motion to Dismiss for improper venue [dkt 3]. The
parties have fully briefed the Motion. The Court finds that the facts and legal arguments pertinent to
Defendant’s Motion are adequately presented in the parties’ papers such that the decision process will not be
aided by oral argument. Therefore, pursuant to E.D. Mich. Local R. 7.1(f)(2), it is hereby ORDERED that
Defendant’s Motion be resolved on the briefs submitted, without this Court entertaining oral argument. For
the reasons that follow, Defendant’s Motion is DENIED.
II. BACKGROUND
As Defendants’ motion contains sparse factual claims, that Court shall adopt the factual background
set forth in Plaintiff’s counsel’s affidavit and Plaintiff’s response brief, to which Defendant did not reply.

On or about May 7, 2012, Plaintiff Aramark Educational Services, LLC filed a three-count complaint
in this Court, alleging two counts of breach of contract, and one count of fraud relating to a written contract for
vending services at the University of Toledo, in Toledo, Ohio. The contract was between Plaintiff, a Delaware
corporation, and Defendant V/Gladieux Enterprises, Inc. (“VG”) an Ohio corporation that was at some time
located at 3400 Executive Parkway, Toledo, Ohio (“Ohio Property”) The contract was signed and executed in
Toledo, Ohio. Additionally, Plaintiff names Timothy M. Gladieux (“Gladieux”), a non-party to the contract,
as a defendant. Gladieux resides at 12260 Lakeshore Drive, La Salle, MI 48145 (the “Michigan Property”).
Plaintiff brought the case under 28 U.S.C. § 1332, as a diversity action.
On February 7, 2012, in connection with Plaintiff’s claims against Defendants, Plaintiff attempted to
serve a demand letter on V/G at the Ohio Property via federal express. On or about February 9, 2012, Plaintiff
was advised by Federal Express that it could not deliver the demand letter because the Ohio Property was
vacant.
Plaintiff’s counsel asserts, via affidavit: that she had a phone conversation with Gladieux regarding the
Complaint, during which she requested that he accept service on behalf of himself and V/G; that Gladieux
agreed to this; that Gladieux advised that the Ohio Property was no longer a valid address for V/G and that the
Waiver of Service forms should be sent to the Michigan Property; that the forms were subsequently delivered
to the Michigan Property; that Gladieux repeatedly directed her to make all calls and send all letters relating to
V/G to the Michigan Property; and that to the best of her knowledge, V/G left the Ohio Property and moved its
principle place of business to Gladieux’s home at the Michigan Property.
Defendants filed the instant motion seeking to dismiss this case, alleging improper venue.
III. LEGAL STANDARD
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise
provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside
in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the

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claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial
district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is
no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a).
IV. ANALYSIS
Defendants argues that venue is improper under 28 U.S.C. § 1391(a)(1)–(3) because: (1) Defendants
reside in different states; (2) a substantial part of the events giving rise to this claim did not occur in this
District; and (3) the action may have otherwise been brought in the Northern District of Ohio. The Court
disagrees, and finds that venue is proper based on 28 U.S.C. § 1391(a)(1).
Plaintiff is a Delaware corporation with a principle place of business in Philadelphia. Gladieux is an
individual residing in Michigan. V/G is an Ohio Corporation, the principle place of business of which is in
dispute. Plaintiff asserts that V/G’s principle place of business is in Gladieux’s home in LaSalle, Michigan;
Defendant denies this and provides a document from Ohio’s Secretary of State purporting to show that V/G is
in fact an Ohio corporation. In response, Plaintiff’s counsel submitted an affidavit stating, among other things:
that she had phone conversation with Gladieux regarding the Complaint, during which she requested that he
accept service on behalf of himself and V/G; that Gladieux agreed to this; that Gladieux advised that the Ohio
Property was no longer a valid address for V/G and that the Waiver of Service forms should be sent to the
Michigan Property; that Gladieux repeatedly directed her to make all calls and send all letters relating to V/G
to the Michigan Property; and that to the best of her knowledge, V/G/ left the Ohio Property and moved its
principle place of business to Gladieux’s home at the Michigan Property.
The party moving to dismiss an action under Federal Rule of Civil Procedure 12(b)(3) bears the
burden of proving that venue is improper. See Kelly Servs. v. Eidenes, 530 F. Supp. 2d 940, 948 (E.D. Mich.
2008). Defendants have failed to satisfy this burden. Defendants offer only bare assertions and a printout
from the website of Ohio’s Secretary of State, to show that V/G “resides” in Ohio for purposes of venue. The
Court notes, however, that merely registering as an Ohio Corporation does not necessarily mean that V/G has

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its principle place of business in Ohio, or that V/G does not maintain its principle place of business in
Michigan. In fact, Defendants’ Motion is notably silent on the issue of V/G’s principle place of business and
Defendants fail to dispute that the Michigan Property is V/G’s principal place of business or offer any evidence
that V/G continues to conduct its business in Ohio. In fact, V/G’s registered address with the State of Ohio is
currently vacant and Defendants do not even attempt to identity an address—if not the Michigan Property—
for V/G’s purported principle place of business.
As such, Plaintiff has set forth a prima facie basis for the Court to conclude that both Defendants
reside in Michigan for purposes of venue, and Defendants have failed to prove otherwise. Because venue is
proper in a judicial district where any defendant resides, if all defendants reside in the same state, 28 U.S.C. §
1391(a)(1), the Court finds it is a proper venue for this case.
V. CONCLUSION
Accordingly, and for the reasons set forth above, Defendant’s Motion to Dismiss for improper venue
[dkt 3] is DENIED.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE

Date: January 25, 2013

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