Tobacco 4 Less, LLC et al v. Yisha et al

Filing 8

ORDER denying 4 Motion to Dismiss. Defendants Motion to Dismiss (Doc. 4 ) is DENIED without prejudice to its refiling in the proper venue. IT IS HEREBY ORDERED that the Clerk of the Court is directed to TRANSFER, FORTHWITH, this case to the United States District Court for the Northern District of Ohio. IT IS SO ORDERED. Signed by Judge Cathy Bissoon on 11/25/14. (rld) [Transferred from pawd on 11/26/2014.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TOBACCO 4 LESS, LLC,
RICHARD D. SALLADE,
Plaintiffs,
v.
RICHARD W. YISHA,
MARIA YISHA,
RICHARD JAMES YISHA,
KIMBERLY L. YISHA,
KRISTIN SMEZNICK,
KAYLA SMEZNICK ,
Defendants.

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Civil Action No. 14-289
Judge Cathy Bissoon

MEMORANDUM ORDER
For the reasons that follow, Defendants’ Motion to Dismiss (Doc. 4) will be denied, and
this case will be transferred.
I. MEMORANDUM
BACKGROUND
Richard Sallade and Tobacco 4 Less, LLC (“Plaintiffs”) bring this civil action against
Richard W. Yisha, Maria Yisha, Richard James Yisha, Kimberly L. Yisha, Kristin Smeznick,
and Kayla Smeznick (“Defendants”) in the Western District of Pennsylvania. Compl. (Doc. 1).
The case arises out of a contract for the sale and delivery of “roll your own” cigarette machines.
Defendants move to dismiss this action for, inter alia, improper venue under Federal Rule of
Civil Procedure 12(b)(3). Plaintiffs agree with Defendants that venue is improper and request a
transfer of the instant matter.

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ANALYSIS
For civil actions brought in Federal Court, 28 U.S.C. § 1391(b) establishes that venue is
proper 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.
Defendants argue that venue in the Western District of Pennsylvania is improper under this
standard, a point with which Plaintiffs agree. Def.’s Br. (Doc. 5) at 11; Pl.’s Resp. (Doc. 7) at 1.
All parties allege that venue is proper in this matter in the Northern District of Ohio, as multiple
Defendants reside in that region and a substantial part of the events or omissions giving rise to
the claim occurred in Northern Ohio. Id.
While the Federal Rules of Civil Procedure authorize the Court to dismiss this case for
improper venue, as requested by Defendants, the Court is additionally authorized to transfer the
case to an appropriate forum. F. R. Civ. P. 12(b)(3); 28 U.S.C. § 1406 (“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.”). “[C]ourts and academics alike have observed that transfer is generally the
preferable course of action.” Corporate Air, LLC v. Davis, 2014 WL 516582 (W.D. Pa. Feb. 7,
2014). As opposed to dismissal, transfer of this case to the Northern District of Ohio – the
conceded proper venue by all parties – will conserve resources and serve the interests of justice.

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II. ORDER
For the reasons stated above, Defendants’ Motion to Dismiss (Doc. 4) is DENIED
without prejudice to its refiling in the proper venue.
IT IS HEREBY ORDERED that the Clerk of the Court is directed to TRANSFER,
FORTHWITH, this case to the United States District Court for the Northern District of Ohio.
IT IS SO ORDERED.

November 25, 2014

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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