Williams et al v. Feeney et al

Filing 15

ORDER & OPINION entered by Judge Joe Billy McDade on 09/12/2013. IT IS THEREFORE ORDERED that the Motions to Dismiss for Lack of Personal Jurisdiction by Defendants Franklin and Ranchero 6 & 7 are DENIED AS MOOT, and the Motion to Transfer Case by Defendant Martin Feeney 10 is GRANTED. This matter is TRANSFERRED to the United States District Court for the District of Nebraska pursuant to 28 U.S.C. § 1406(a).(JS, ilcd) [Transferred from Illinois Central on 9/13/2013.]

E-FILED

Thursday, 12 September, 2013 02:59:42 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
HOPE K. WILLIAMS, individually and
as independent administrator of Olin B.
Kicklighter, Jr., OLIN B.
KICKLIGHTER, and ANNIE GIBBS,
Plaintiffs,
v.
MARTIN FEENEY, FEENEY XPRESS
TRANSPORT, BARY FRANKLIN, and
RANCHERO, LLC,
Defendants.

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Case No. 13-cv-1224

ORDER & OPINION
This matter is before the Court on Motions to Dismiss for Lack of Personal
Jurisdiction by Defendants Bary Franklin and Ranchero, LLC (Docs. 6 & 7), and a
Motion to Transfer Case by Defendants Martin Feeney and Feeney Xpress
Transport, Inc. (Doc. 10). Plaintiffs have filed responses in opposition to each of
these Motions. For the reasons stated below, Defendant Feeney’s Motion to Transfer
is granted, and the Motions to Dismiss for Lack of Personal Jurisdiction by
Defendants Franklin and Ranchero are denied as moot.
This diversity action arises out of an automobile accident in Nebraska, which
killed Plaintiffs’ decedent, and was allegedly caused by the negligence of one or
more of the Defendants or their employees. (Doc. 5). According to the Second
Amended Complaint, Plaintiffs and their decedent are citizens of Georgia and/or

California,1 Defendants Feeney and Feeney Xpress Transport appear to be citizens
of Illinois, and Defendants Franklin and Ranchero appear to be citizens of Missouri.
Plaintiffs’ claims are based on Illinois’ Survival Statute and Wrongful Death Act.
Civil actions may be brought in a federal district court 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(b). Under 28 U.S.C.A. § 1406(a), “[t]he 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.” (emphasis added).
As Defendants Feeney and Feeney Xpress Transport, Inc. point out, § 1391(b)
does not provide for venue in the Central District of Illinois, or in any Illinois
federal district court.2 Though Plaintiffs’ Second Amended Complaint relies on §

Plaintiffs’ decedent was in the process of moving from California to Georgia
at the time of his death. (Doc. 5 at 2).
1

Defendants Feeney and Feeney Xpress Transport cited to 28 U.S.C. § 1404,
which governs discretionary transfers of venue where the plaintiff’s choice of venue
is not erroneous under § 1391, as support for their Motion to Transfer, and
Plaintiffs’ Response focused on that section’s consideration of the convenience of the
parties and the interests of justice; neither party cited § 1406. (Doc. 10 at 2-3).
Because of the mandatory language of § 1406, the Court finds that Defendants’
argument that venue is improper under § 1391 is sufficient to avoid waiver of the
venue question. See also United Financial Mortg. Corp. v. Bayshores Funding Corp.,
245 F.Supp.2d 884, 896 (N.D. Ill. 2002) (citing Greenberg v. Miami Children's Hosp.
Research Inst., Inc., 208 F.Supp.2d 918, 928 (N.D. Ill. 2002)) (“It is appropriate for
this Court to consider a transfer under this section sua sponte.”).
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1391(b)(1) for its assertion of the Central District of Illinois as the proper venue for
this suit, the first subsection only applies if all of the defendants are residents of the
forum state, which is not the case here: though Defendants Feeney and Feeney
Xpress Transport are from Illinois, Defendants Franklin and Ranchero are from
Missouri. The Second Amended Complaint reveals that the accident at issue in this
case took place in Nebraska, so § 1391(b)(2) indicates that only Nebraska is the
proper venue under that subsection. (Doc. 5 at 6-7). It does not appear, and
Plaintiffs do not argue, that Nebraska is somehow unavailable as a forum for this
litigation, so § 1391(b)(3) does not render Illinois a suitable forum.3 Plaintiffs’
Response to the Motion to Transfer fails to put forth any argument that the Central
District of Illinois is the proper venue under § 1391(b), arguing only that it is just as
convenient as any other forum and that Plaintiffs’ initial choice of forum should be
given deference. (Doc. 12).
Because § 1406 provides that in the event a plaintiff choose an improper
venue the court shall dismiss or transfer the action, it is plain that this Court
cannot preside over this case; no consideration of the convenience of the parties or
Court is necessary. Defendant Feeney moves for transfer to the United States
District Court for the District of Nebraska, rather than dismissal, and this appears
to be in the interest of justice.4 Because the Court has determined that it is

It appears that a federal district court in Nebraska could exercise specific
personal jurisdiction over Defendants Franklin and Ranchero, as this suit arises
from injuries allegedly caused by Defendants’ acts in Nebraska. NEB.REV.ST. § 25536(1)(c).
3

The Court need not ascertain whether it has personal jurisdiction over
Defendants Franklin and Ranchero in order to transfer under § 1406. See

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appropriate to transfer this action to the District of Nebraska, Defendant Franklin’s
and Defendant Ranchero’s Motions to Dismiss for Lack of Personal Jurisdiction are
denied as moot.
IT IS THEREFORE ORDERED that the Motions to Dismiss for Lack of
Personal Jurisdiction by Defendants Franklin and Ranchero (Docs. 6 & 7) are
DENIED AS MOOT, and the Motion to Transfer Case by Defendant Martin Feeney
(Doc. 10) is GRANTED. This matter is TRANSFERRED to the United States
District Court for the District of Nebraska pursuant to 28 U.S.C. § 1406(a).

Entered this 12th day of September, 2013.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

Greenberg, 208 F.Supp.2d at 928 (§ 1406(a) permits a court to transfer an action
regardless of whether it has personal jurisdiction over defendants).
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