Hostetler v. Dillard

Filing 9

ORDER denying 6 Motion to Change Venue to the Northern District of the United States District Court of Mississippi. Signed by Magistrate Judge Robert H. Walker on August 20, 2013 (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

D. PERRY HOSTETLER
VERSUS

PLAINTIFF
CIVIL ACTION NO. 3:13CV351-WHB-RHW

WILLIAM L. DILLARD

DEFENDANT

ORDER DENYING MOTION TO TRANSFER VENUE
Before the Court is Plaintiff D. Perry Hostetler's [6] Motion to Change Venue. On June
7, 2013, Plaintiff filed suit in the Southern District of Mississippi. Defendant then filed a [2]
Motion to Dismiss on July 5, 2013, asserting that Plaintiff failed to join a necessary and
indispensable party. The motion to dismiss is still pending. Although Defendant filed a
responsive pleading, he has not yet filed an answer to the complaint. On July 25, 2013,
approximately 48 days after filing the complaint, Plaintiff filed the instant motion to transfer
venue to the Northern District of Mississippi. Plaintiff argues that he mistakenly filed the lawsuit
in the Southern District of Mississippi. Defendant resides in the Northern District, and the events
giving rise to the lawsuit occurred in the Northern District. Plaintiff lists his residence as Weyers
Cave, Virginia. Defendant opposes the transfer of venue and argues that Plaintiff waived any
objection to venue by filing the lawsuit in the Southern District of Mississippi.
In relevant part, the federal venue statute provides that a civil action may be brought in
the judicial district in which any defendant resides or a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred, or a substantial part of the property
that is subject of the action is situated. 28 U.S.C. § 1391(b)(1)-(2). Based on the allegations in
the complaint and the pleadings of the parties, it appears that venue is not proper in the Southern

District of Mississippi. Rather, venue would be proper in the Northern District of Mississippi.
Pursuant to 28 U.S.C. § 1406(a), if a case is filed in the wrong division or district, the district
court shall dismiss, or if it be in the interest of justice, transfer the case to the proper division or
district. Section 1406(b) further provides that “[n]othing in this chapter shall impair the
jurisdiction of a district court of any matter involving a party who does not interpose timely and
sufficient objection to venue.”
While it appears to be undisputed that venue is not proper in the Southern District of
Mississippi and that venue would be proper in the Northern District of Mississippi, the question
presented is whether Plaintiff is able to request a transfer of venue at this stage of the litigation.
Defendant argues that by filing a complaint in the Southern District, Plaintiff waived his right to
challenge venue. Neither party is asking that the case be dismissed pursuant to § 1406(a).
Rather, Plaintiff requests that the case be transferred to the district where venue is proper, while
Defendant requests that the case remain in the Southern District based on Plaintiff’s waiver.
The United States Supreme Court in dicta stated that a plaintiff, “by bringing the suit in a
district other than that authorized by the statute, relinquished his right to object to the venue.”
Olberding v. Illinois Central Ry. Co., 346 U.S. 338, 340 (1953). Other courts have cited with
approval this statement of law. See Gordon v. Virtumundo, 575 F.3d 1040, 1066 (9th Cir. 2009);
Manley v. Ingram, 755 F.2d 1463, 1468 (11th Cir. 1985); Smilde v. Snow, 73 Fed. Appx. 24, 2003
WL 21754965 (5th Cir. 2003)(unpublished); Park v. McGowan, 2011 WL 6329797 (E.D.N.Y.
2011)(unpublished); Roberts v. Sony Corp., 2006 WL 213706 (D.Utah 2006) (unpublished). In
an unpublished opinion, the Fifth Circuit denied a motion to change venue filed by a plaintiff on
appeal and held that “[b]y filing suit in the Western District of Texas, [plaintiff] voluntarily
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submitted himself to the jurisdiction of that court and consented to that venue.” Smilde, 73 Fed.
Appx. at 26. The procedural posture of Smilde was considerably different from that of the
present case. Nevertheless, the undersigned recognizes that the Fifth Circuit cited with approval
the dicta contained in Olberding.
The Eleventh Circuit also has recognized the “general rule” from Olberding that a
plaintiff relinquishes his right to challenge venue by virtue of filing suit in a particular venue.
See Manley, 755 F.2d at 1468. However, in Manley the Eleventh Circuit distinguished
Olberding and held that the plaintiff in Manley should have been allowed to challenge venue
because the propriety of venue was obscured in that the defendant lived in one state but
subjectively considered another state to be his permanent residence, and because plaintiff could
not in the exercise of due diligence have known the defendant’s true residence at the time the
lawsuit was filed. Id. Hence, in situations where a plaintiff does not have actual or constructive
knowledge of the defendant’s residence, the Eleventh Circuit recognizes an exception to the
Olberding rule. Id. at 1468-69. In the instant case, there is no allegation that Plaintiff lacked
actual or constructive knowledge that venue was proper in the Northern District. Plaintiff merely
states that he “mistakenly” filed the lawsuit in the Southern District.
It is unclear whether Plaintiff has the ability to challenge venue. By filing the lawsuit in
the Southern District of Mississippi, Plaintiff may have waived any challenge to venue. The
federal venue statute is designed to protect defendants, not plaintiffs, from a potentially
unfavorable venue. See Leroy v. Great Western United Corp., 443 U.S. 173, 183-84 (1979).
Given that Defendant filed a responsive pleading prior to Plaintiff’s motion to transfer venue and
given Defendant’s objection to a transfer of venue, the Court finds that Plaintiff’s request for a
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transfer of venue is now untimely. In the absence of controlling Fifth Circuit precedent to the
contrary, the Court finds that pursuant to Olberding, Plaintiff has waived his right to object to
venue.
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s [6] Motion to
Transfer Venue is DENIED.
SO ORDERED, this the 20th day of August, 2013.

/s/

Robert H. Walker

ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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