Vargo v. D & M Tours, Inc. et al

Filing 33

Memorandum Opinion and Order granting Defendants' Motion to dismiss for lack of jurisdiction (Doc. # 10 ); denying as moot Defendants' Motion to dismiss Cross Claim of Defendant Stauffer and/or for lack of jurisdiction (Doc. # 19 ); granting Defendants' Motion to Dismiss or Transfer for Improper Venue (Doc. # 23 ); Granting Defendants' Motion to dismiss Bureau of Workers' Compensation Complaint (Doc. # 29 ); Granting Defendants' Motion to dismiss and/or transfer for improper venue or Motion to dismiss for lack of in personam jurisdiction (Doc. # 31 ). This matter is hereby DISMISSED in its entirety, without prejudice. Judge John R. Adams on 5/7/19. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WALTER P. VARGO, JR., et al.,
Plaintiffs,
v.
D & M TOURS, INC., et al.,
Defendants.

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CASE NOS.: 4:18CV01297
JUDGE JOHN R. ADAMS

MEMORANDUM OF OPINION AND
ORDER
(Resolves Docs. 10, 19, 23, 29, and 31)

Currently pending before this Court are two motions to dismiss Plaintiff Walter P. Vargo, Jr.’s
(“Vargo”) complaint, two motions to dismiss Plaintiff Stephanie McCloud, Administrator of the
Ohio Bureau of Workers’ Compensation’s (“Ohio BWC”) complaint, and one motion to dismiss
Defendant William A. Stauffer’s (“Stauffer”) crossclaims against Defendant D & M Tours, Inc.
(“D & M Tours”) and Defendant Jose Roman (“Roman”). (Defs. D & M Tours’ and Roman’s Mot.
to Dismiss Vargo Compl., ECF No. 10; Def. Stauffer’s Mot. to Dismiss Vargo Compl., ECF No.
23; Defs. D & M Tours’ and Roman’s Mot. to Dismiss Ohio BWC Compl., ECF No. 29; Def.
Stauffer’s Mot. to Dismiss Ohio BWC Compl., ECF No. 31; Mot. to Dismiss Cross-cls., ECF No.
19.) As a preliminary matter, Stauffer’s crossclaims against D & M Tours and Roman were
dismissed, without prejudice, on April 15, 2019, rendering the pending motion to dismiss
Stauffer’s crossclaims MOOT. (See Stipulation and Order, ECF No. 27.) Therefore, the remainder
of this discussion will only consider the pending motions to dismiss Vargo’s complaint and Ohio
BWC’s complaint.
The pending motions to dismiss at issue assert that this Court lacks personal jurisdiction over
the properly aligned defendants against whom service has been perfected, and that this Court is an

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improper venue for this action pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3),
respectively. (See generally Defs. D & M Tours’ and Roman’s Mot. to Dismiss Vargo Compl.,
ECF No. 10; Def. Stauffer’s Mot. to Dismiss Vargo Compl., ECF No. 23; Defs. D & M Tours’
and Roman’s Mot. to Dismiss Ohio BWC Compl., ECF No. 29; Def. Stauffer’s Mot. to Dismiss
Ohio BWC Compl., ECF No. 31.)
As a brief procedural background, Vargo filed his complaint against D & M Tours, Roman,
and Stauffer, along with FedEx, Inc. (“FedEx”), Ohio BWC, and L.T. Harnett Trucking, Inc. (“L.T.
Harnett”). (Compl. 1-2, ECF No. 1.) Despite naming L.T. Harnett and Ohio BWC as defendants,
Vargo failed to assert any claims for relief against them, and instead requested that they appear to
“assert their interest in the outcome of this case.” (Id. at 5-6.) L.T. Harnett did not enter an
appearance in this matter. (See generally Docket, Vargo, et al. v. D & M Tours, Inc., et al., No.
4:18-cv-01297, N.D. Ohio.) Therefore, this Court will not consider L.T. Harnett any further in
analyzing the pending motions at issue.
Ohio BWC, on the other hand, was properly realigned as a named plaintiff and subsequently
filed an amended complaint asserting its subrogation rights to any relief awarded Vargo. (Marginal
Entry Order, ECF No. 26; Am. Compl. of Ohio BWC, ECF No. 28.) Therefore, Ohio BWC and
Vargo, collectively, are referred to as “Plaintiffs” for the remainder of this discussion.
Finally, with respect to FedEx, Vargo failed to perfect service upon FedEx within the
timeframe allotted by the Federal Rules of Civil Procedure. 1 As service upon FedEx was never
accomplished, this Court does not have jurisdiction over FedEx in this matter and will not engage

1

Pursuant to the Federal Rules of Civil Procedure, Vargo was required to perfect service upon each defendant within
90 days of filing his complaint. See Fed. R. Civ. P. (e)-(m). With respect to perfecting service upon FedEx, the only
information this Court has is notice from Vargo that service was attempted upon FedEx, but ultimately unexecuted.
(Return of Service, ECF No. 13.) To date, more than ten months after Vargo filed his complaint, service upon FedEx
has not been perfected and Vargo has not properly requested additional time to perfect service upon FedEx.

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in any further discussion of FedEx with respect to the pending motions at issue. See Brown v.
PixelRange, Inc., No. 18-5745, 2019 U.S. App. LEXIS 9608, at *4-5 (6th Cir. Apr. 1, 2019)
(stating that “proper service of process is required for the district court to exercise personal
jurisdiction over a defendant”) (citing Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th
Cir. 1991)). See also Fed. R. Civ. P. 4(k)(1).
In sum, the parties in this case are as follows: Vargo and Ohio BWC are plaintiffs against
defendants D & M Tours, Roman, and Stauffer (hereinafter, collectively, “Defendants”). At issue
is whether this Court has personal jurisdiction over Defendants and whether this Court is the proper
venue for this action. For the reasons explained herein, this Court does not have personal
jurisdiction over Defendants D & M Tours, Roman, and Stauffer, and this Court is not the proper
venue for this action. Therefore, the pending motions to dismiss this action for lack of jurisdiction
and improper venue are GRANTED and this matter is hereby DISMISSED in its entirety.
I.

STATEMENT OF FACTS
This action arises out of a motor vehicle accident that occurred in Northampton County,

Pennsylvania on June 7, 2016. (Compl. 2, ECF No. 1.) Vargo alleges that he suffered damages
from the motor vehicle accident due to the negligence of Roman and Stauffer, who, at the time of
the motor vehicle accident, were purportedly acting within the scope and course of employment
with D & M Tours and FedEx, respectively. (Id. at 4-5.) Vargo, through his complaint, seeks
damages jointly and severally against Roman, D & M Tours, Stauffer, and FedEx. (Id. at 5-6.)
Accordingly, for the parties at interest as outlined in the previous section, Vargo’s complaint
asserts that, for Plaintiffs, Vargo is a resident of Ohio and Ohio BWC is an Ohio entity. (Id. at 23.) On the other hand, each defendant is an out-of-state defendant: Roman is a resident of New
Jersey, D & M Tours is a corporation organized in New Jersey, and Stauffer is a resident of

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Pennsylvania. (Id.) Vargo’s complaint does not allege that D & M Tours, Roman, or Stauffer have
any connections to Ohio. (See generally Compl.)
In response to Vargo’s complaint, D& M Tours and Roman jointly filed a motion to dismiss
Vargo’s complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(2). (Defs. D & M Tours’ and Roman’s Mot. to Dismiss Vargo Compl., ECF No. 10.) Shortly
after D & M Tours and Roman filed their motion to dismiss, Stauffer answered Vargo’s complaint
and asserted crossclaims against D & M Tours and Roman. (Am. Answer, ECF No. 18.) D & M
Tours and Roman, thereafter, filed a motion to dismiss Stauffer’s crossclaims. (Mot. to Dismiss
Cross-cl., ECF No. 19.) Rather than filing a brief in opposition to D & M Tours’ and Roman’s
motion to dismiss his crossclaims, Stauffer ultimately filed his own motion to dismiss Vargo’s
complaint for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil
Procedure 12(b)(2) and 12(b)(3), respectively. (Def. Stauffer’s Mot. to Dismiss Vargo Compl.,
ECF No. 23.)
Additionally, once Ohio BWC was properly realigned as a plaintiff in this matter, D& M Tours
and Roman jointly filed a motion to dismiss Ohio BWC’s complaint for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). (Defs. D & M Tours’ and
Roman’s Mot. to Dismiss Ohio BWC Compl., ECF No. 29.) Thereafter, Stauffer filed his own
motion to dismiss Ohio BWC’s complaint for lack of personal jurisdiction and improper venue
pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), respectively. (Def. Stauffer’s
Mot. to Dismiss Ohio BWC Compl., ECF No. 31.) Vargo did not oppose, respond, or otherwise
object to any of the pending motions to dismiss this action. (See generally Docket, Vargo, et al. v.
D & M Tours, Inc., et al., No. 4:18-cv-01297, N.D. Ohio.)

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II.

PERSONAL JURISDICTION
A. Standard of Review
Regarding the pending motions to dismiss Plaintiffs’ claims for lack of personal jurisdiction,

“[t]he procedural scheme which guides the district court in disposing of Rule 12(b)(2) motions is
well-settled.” Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991) (citing Serras v. First
Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)). It is Plaintiffs’ burden to establish
that this Court has personal jurisdiction over Defendants. Id. (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). See also Youn v. Track, Inc., 324 F.3d 409, 417 (6th
Cir. 2003) (citing Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)).
Plaintiffs are required to “set forth specific facts showing that the court has jurisdiction.”
Theunissen, 935 F.2d at 1458 (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir.
1974)).
Where, as with the instant matter, a court rules on a motion to dismiss for lack of personal
jurisdiction by analyzing the pleadings and motions before it without the parties engaging in
discovery or the court conducting an evidentiary hearing, “the court must consider the pleadings .
. . in a light most favorable to the plaintiff . . . .” CompuServe, Inc. v. Patterson, 89 F.3d 1257,
1262 (6th Cir. 1996) (citing Theunissen, 935 F.2d at 1458-59). Therefore, Plaintiffs “need only
make a prima facie showing of jurisdiction.” Id. (citing Theunissen, 935 F.2d at 1458-59). A prima
facie showing that personal jurisdiction exists is made by “establishing with reasonable
particularity sufficient contacts between [Defendants] and the forum state to support jurisdiction.”
Neogen Corp., 282 F.3d at 887 (quoting Provident Nat’l Bank v. Cal. Fed. Savings Loan Ass’n,
819 F.2d 434, 437 (3d Cir. 1987) (internal quotation marks omitted)).

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B. Discussion
In cases where subject matter jurisdiction is predicated on diversity, such as the instant matter,
when determining whether personal jurisdiction exists over an out-of-state defendant, the law of
the forum state is looked to. Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000).
Accordingly, a court may only validly exercise personal jurisdiction over an out-of-state defendant
when both the forum state’s long-arm statute and constitutional due process requirements are met.
Id. See also Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (explaining that personal
jurisdiction exists for an out-of-state defendant “if the defendant is amenable to service of process
under the [forum] state’s long-arm statute and if the exercise of personal jurisdiction would not
deny the defendant[] due process”) (quoting Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 954 F.2d 1174, 1176 (6th Cir. 1992) (internal quotation marks and citations
omitted)).
1. Ohio’s Long-Arm Statute
Looking first to Ohio’s long-arm statute, it states:
(A) A court may exercise personal jurisdiction over a person who
acts directly or by an agent, as to a cause of action arising from
the person’s:
(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission
outside this state if he regularly does or solicits business, or
engages in any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or
services rendered in this state;
(5) Causing injury in this state to any person by breach of
warranty expressly or impliedly made in the sale of goods
outside this state when he might reasonably have expected
such person to use, consume, or be affected by the goods in
this state, provided that he also regularly does or solicits
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business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or
consumed or services rendered in this state;
(6) Causing tortious injury in this state to any person by an act
outside this state committed with the purpose of injuring
persons, when he might reasonably have expected that some
person would be injured thereby in this state;
(7) Causing tortious injury to any person by a criminal act, any
element of which takes place in this state, which he commits
or in the commission of which he is guilty of complicity;
(8) Having an interest in, using, or possessing real property in
this state;
(9) Contracting to insure any person, property, or risk located
within this state at the time of contracting.
R.C. 2307.382(A)(1)-(9).
Because Vargo did not respond to either pending motion to dismiss his complaint for lack of
personal jurisdiction, this Court only has his pleading and Ohio BWC’s pleading to consider
whether Plaintiffs met their burden of establishing that this Court has personal jurisdiction over
Defendants. Considering the pleadings in the light most favorable to Plaintiffs, this Court cannot
conclude that Plaintiffs met the requirement of setting forth specific facts that demonstrate that
this Court has personal jurisdiction over Defendants.
Vargo is clear in his complaint that the motor vehicle accident giving rise to his cause of action
occurred in Pennsylvania. Vargo also clearly sets forth that he is a resident of Ohio and Ohio BWC
is an Ohio entity whereas D & M Tours and Roman are residents of New Jersey and Stauffer is a
resident of Pennsylvania. However, Vargo’s complaint does not include any factual allegations
connecting these out-of-state Defendants to Ohio pursuant to the means by which Ohio courts can
reach out-of-state defendants, as enumerated in Ohio’s long-arm statute, Ohio Revised Code §
2307.382(A)(1)-(9).

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Likewise, Ohio BWC’s pleading only asserts its right to recover sums paid on behalf of Vargo
by Ohio BWC should Vargo be awarded any relief against Defendants. (See generally Am. Compl.
of Ohio BWC, ECF No. 28.) However, this pleading also does not include any factual allegations
connecting the out-of-state Defendants to Ohio through any means enumerated and required by
Ohio’s long-arm statute, Ohio Revised Code § 2307.382(A)(1)-(9).
Therefore, because the requirements of Ohio’s long-arm statute are not met, this Court cannot
properly exercise personal jurisdiction over any of the Defendants, all of which are out-of-state
defendants.
2. Constitutional Due Process
Although this Court cannot properly exercise personal jurisdiction over the Defendants
because the requirements of Ohio’s long-arm statute are not met, a brief analysis of constitutional
due process requirements solidify the conclusion that this Court cannot properly exercise personal
jurisdiction over Defendants.
It is important to first note that “the Ohio Supreme Court has ruled that the Ohio long-arm
statute does not extend to the constitutional limits of the Due Process Clause . . . .” Calphalon, 228
F.3d at 721. See also Goldstein v. Christiansen, 70 Ohio St.3d 232, 238, 638 N.E.2d 541 (1994),
fn. 1. Accordingly, the requirements of Ohio’s long-arm statute to reach out-of-state defendants
are narrower than constitutional due process requirements. Therefore, the analysis for this Court,
in determining whether personal jurisdiction over Defendants is proper pursuant to constitutional
due process requirements, focuses on whether Defendants have sufficient minimum contacts with
Ohio such that “the maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Calphalon, 228 F.3d at 721; Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The critical question, of course, is whether

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“the defendant’s conduct and connection with the forum State are such that he should reasonably
anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980).
Pursuant to due process considerations, personal jurisdiction over Defendants may be based
upon general jurisdiction or specific jurisdiction, “depending upon the nature of the contacts that
the defendant has with the forum state.” Bird, 289 F.3d at 873 (citing Conti v. Pneumatic Prods.
Corp., 977 F.2d 978, 981 (6th Cir. 1992)). General jurisdiction exists where “a defendant’s
contacts with the forum state are of such a continuous and systematic nature that the state may
exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant’s
contacts with the state.” Third Nat’l Bank in Nashville v. WEDGE Group Inc., 882 F.2d 1087,
1089 (6th Cir. 1989) (citing generally Perkins v. Benguet Consol. Mining Co., 342 U.S. 437
(1952)). Boiled down, general jurisdiction exists where a defendant is essentially at home. See
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
General jurisdiction over Defendants is not present in this matter. Vargo’s pleading made no
mention of any contacts between Defendants and Ohio, let alone continuous and systematic
contacts such that Defendants should be considered essentially at home in Ohio. Therefore, if
constitutional due process requirements are met in this matter, it must be pursuant to the limitations
of specific jurisdiction.
Specific jurisdiction allows a state to exercise “personal jurisdiction over a defendant in a suit
arising out of or related to the defendant’s contacts with the forum.” Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). In essence, the standard used to determine
whether a defendant should reasonably anticipate out-of-state litigation is the following:

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The unilateral activity of those who claim some relationship with a
nonresident defendant cannot satisfy the requirement of contact with
the forum State. The application of that rule will vary with the
quality and nature of the defendant’s activity, but it 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.
Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing Int’l Shoe Co. v. Wash., 326 U.S. 310, 319
(1945)).
The Sixth Circuit has set forth a three-part test to determine the outer limits of personal
jurisdiction based upon Defendants’ contacts with Ohio: “First, the defendant must purposefully
avail himself of the privilege of acting in the forum state or causing a consequence in the forum
state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts
of the defendant or consequences caused by the defendant must have a substantial enough
connection with the forum state to make the exercise of jurisdiction over the defendant
reasonable.” S. Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir. 1968).
The purposeful availment requirement “ensures that a defendant will not be haled into a
jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts . . . or of the
‘unilateral activity of another party or a third person.’ Jurisdiction is proper, however, where the
contacts proximately result from actions by the defendant himself that create a ‘substantial
connection’ with the forum State.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)
(quoting, in turn, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); World-Wide

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Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980); Helicopteros Nacionales de Colombia,
S.A., 466 U.S. at 417; McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)).
The analysis, therefore, can stop here. There is no evidence, whatsoever, contained in the
record before this Court that Defendants purposefully availed themselves of the protections and
benefits of Ohio. In fact, there is no evidence contained in the record that Defendants had any
contacts, minimum or otherwise, with Ohio. The only connection Defendants have with Ohio is
that they were allegedly involved in a motor vehicle accident with Vargo in Pennsylvania while
Vargo was a resident of Ohio and that after the motor vehicle accident Vargo sought medical
treatment in Ohio. This connection to Ohio of Defendants can only be described as random,
fortuitous, attenuated, and the result of the unilateral activity of Vargo. Because Defendants have
no contacts with Ohio, Defendants did not purposefully avail themselves of the privileges or
benefits of acting in Ohio, and, therefore, Defendants could not reasonably anticipate being haled
into court in Ohio. Accordingly, specific jurisdiction over Defendants does not exist in this Court,
and constitutional due process requirements are not met.
For all of the foregoing reasons – because Ohio’s long arm statute and constitutional due
process requirements are not met – this Court cannot properly exercise personal jurisdiction over
Defendants. Therefore, this case must be dismissed.
III.

VENUE
A. Discussion
In addition to his motions to dismiss this action due to lack of personal jurisdiction, Stauffer
also argues that dismissal is proper because this Court is an improper venue, pursuant to Federal
Rule of Civil Procedure 12(b)(3). Once again, it is Plaintiffs’ burden to establish that the chosen
venue for the action is proper. Jae v. Chexsystems Inc., No. 4:18-cv-0206, 2018 U.S. Dist. LEXIS

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114425, at *5 (N.D. Ohio July 10, 2018) (citing Centerville ALF, Inc. v. Balanced Care Corp.,
197 F. Supp. 2d 1039, 1046 (S.D. Ohio 2002)).
Pursuant to 28 U.S.C. § 1391(b), “[a] civil action may be brought 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.S. § 1391(b) (LEXIS 2019). If this Court determines that venue
here is improper, it “shall dismiss, or if it be in the interest of justice, transfer [the] case to any
district or division in which it could have been brought.” 28 U.S.C.S. § 1406(a) (LEXIS 2019).
The choice to dismiss or transfer this case is within the sound discretion of this Court. First of
Mich. Corp. v. Bramlet, 141 F.3d 260, 262 (6th Cir. 1998).
Vargo’s complaint alleges that venue is proper in this Court because this Court sits in the
district where FedEx and L.T. Harnett conduct business, where Ohio BWC has a regional office
and administered Vargo’s workers’ compensation claim, and the district where Vargo resides. (See
Compl. 2-3, ECF No. 1.) However, none of this establishes that this Court is the proper venue for
this action pursuant to the requirements of 28 U.S.C. § 1391(b). As discussed previously, FedEx
and L.T. Harnett are not parties to this action. Although Ohio BWC and Vargo are both Plaintiffs
in this action, as the statute enumerates, it is not residency of any plaintiff that determines venue,
but rather residency of Defendants.
To be clear, following the requirements for venue as enumerated in 28 U.S.C. § 1391(b), this
Court does not sit in a judicial district in which any Defendant resides and not all Defendants are

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residents of the same state, let alone of Ohio. In addition, a substantial part of the events or
omissions giving rise to Vargo’s claim did not occur in this district – as explained in his complaint,
the motor vehicle accident occurred in Pennsylvania, not Ohio. Finally, as has been analyzed in
detail above, Defendants are not subject to this Court’s personal jurisdiction. Therefore, even if
there were no other district where Vargo’s action could be brought, this Court is still not the proper
venue.
In sum, Vargo’s complaint is devoid of factual allegations that connect this action to the
Northern District of Ohio, other than Vargo’s maintenance of residency here and Vargo’s receiving
medical treatment here following the motor vehicle accident in Pennsylvania. Because the location
of medical treatment following the occurrence of a tort does not constitute a substantial part of the
events that “give rise” to the claim as the venue statute intended, Stauffer’s motion to dismiss
Vargo’s complaint for improper venue and motion to dismiss Ohio BWC’s complaint for improper
venue are well taken. See Wisland v. Admiral Beverage Corp., 119 F.3d 733, 736 (8th Cir. 1997)
(holding that medical treatment does not create venue because “the events giving rise to
[plaintiff’s] action involve the alleged negligence of the defendants in South Dakota, not the nature
of [plaintiff’s] medical treatment in Wisconsin”). See also Bennett v. Herringshaw, No. 1:09-cv1111-SEB-JMS, 2010 U.S. Dist. LEXIS 35496, at *1-2 (S.D. Ind. Apr. 8, 2010) (summarizing that
“[i]t is the location of Defendant’s alleged negligence, not the place where Plaintiff received
medical treatment that determines venue”); Bryan v. Hyatt Corp., No. 07-CV-11955, 2008 U.S.
Dist LEXIS 5047, at *5-6 (E.D. Mich. Jan. 24, 2008) (concluding that medical treatment that
occurred in Michigan does not constitute “a substantial part of the events giving rise to the claim”
when the injuries were caused by a massage in California); Ukai v. Fleurvil, No. 06-00237
JMS/KSC, 2006 U.S. Dist LEXIS 81837, at *12-13 (D. Hawaii Nov. 7, 2006) (concluding venue

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was improper in Hawaii where the plaintiff received medical treatment when the injury was
sustained in New York); Whiteman v. Grand Wailea Resort, No. C98-04442 MMC, 1999 U.S.
Dist. LEXIS 3594, at *5 (N.D. Cal. Mar. 17, 1999) (stating that medical treatment in a specific
district “is insufficient to create venue”); Smith v. Fortenberry, 903 F. Supp. 1018, 1020-21 (E.D.
La. 1995) (agreeing that medical treatment received in Louisiana does not establish “a substantial
part of the events giving rise to the claim” when the injuries were caused by alleged negligence in
connection with a motor vehicle accident in Mississippi).
Because this case was filed in a court that neither had personal jurisdiction over Defendants
nor was the proper venue for this action, this Court is well within its discretion to dismiss this
action in its entirety, rather than transfer the matter – particularly when Vargo has failed to respond
or otherwise participate in the motion practice before this Court.
IV.

CONCLUSION
For the foregoing reasons, the pending motion to dismiss Stauffer’s crossclaims MOOT. With

respect to the remaining pending motions, this Court does not have personal jurisdiction over
Defendants D & M Tours, Roman, and Stauffer, and this Court is not the proper venue for this
action. Therefore, the pending motions to dismiss this action for lack of jurisdiction and improper
venue are GRANTED and this matter is hereby DISMISSED in its entirety, without prejudice.
IT IS SO ORDERED.
DATE: May 7, 2019

/s/ John R. Adams
Judge John R. Adams
UNITED STATES DISTRICT COURT

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