MCMAHON et al v. ARSENBERGER TRUCKING CO. INC. et al

Filing 10

MEMORANDUM RE: DEFENDANTS MOTION TO TRANSFER VENUE. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/11/17. 8/11/17 ENTERED AND COPIES E-MAILED. (va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ARTHUR MCMAHON
MCMAHON

&

JOANNE
CIVIL ACTION

v.

NO. 17-1242

ARSENBERGER TRUCKING CO. INC.
& ROMAN BEST
Baylson, J.

August 11, 2017

MEMORANDUM RE: DEFENDANT’S MOTION TO TRANSFER VENUE
In this case, Plaintiffs Arthur McMahon and Joanne McMahon, were involved in a motor
vehicle accident with the Defendant, Roman Best, which they allege caused them both severe
and permanent personal injuries, as well as future suffering and loss of consortium. Presently
before the Court is Defendants’ motion to transfer the Plaintiffs’ personal injury and loss of
consortium claims to the Middle District of Pennsylvania pursuant to Rule 12(b)(3). For the
reasons stated below, Defendants’ motion is denied without prejudice.
I.

Factual and Procedural Background
Taking all facts averred in Plaintiff’s complaint as true, they are as follows. On July 12,

2015, Plaintiffs were involved in a motor vehicle accident on Interstate Highway Route 84 in
Pennsylvania with Best. (ECF 1, Compl. ¶¶ 6,10.) At the time of the accident, Plaintiff Joanne
McMahon was operating their vehicle, while her husband Plaintiff Arthur McMahon was in the
passenger’s seat. (ECF 1, Compl. ¶ 7.) Plaintiffs were rear-ended by a large truck driven by
Best while he was acting within the scope of his employment and with the permission of his
employer, Defendant Arsenberger Trucking Co. Inc. (ECF 1, Compl. ¶¶ 8, 9.)
On March, 17, 2017, Plaintiffs filed a complaint alleging severe and permanent injuries
as a result of the accident. (ECF 1.) Plaintiffs further allege that as a result of the injuries
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suffered by their respective spouse they will suffer the loss of usual services and consortium in
the future. (ECF 1.) Defendants subsequently filed a motion to transfer venue to the United
States District Court for the Middle District of Pennsylvania on March 22, 2017. (ECF 6.)
Plaintiffs filed response to the Defendants’ motion to transfer venue on June 5, 2017. (ECF 7.)
Defendants filed a reply on June 19, 2017. (ECF 9.)
II.

Legal Standard
In considering a motion to dismiss for improper venue under Federal Rule of Civil

Procedure 12(b)(3), the court must generally accept as true the allegations in the complaint,
although the parties may submit affidavits in support of their positions. See Heft v. AAI Corp.,
355 F. Supp. 2d 757, 762 (M.D. Pa. 2005) (citing Myers v. Am. Dental Ass'n, 695 F.2d 716, 724
(3d Cir. 1982). The court may examine facts outside the complaint to determine proper venue,
but must draw all reasonable inferences and resolve all factual conflicts in the plaintiff's favor.
See Id.; Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 8 (D. D.C. 2003). The Third Circuit
has determined that "the movant (the defendant) bears the burden of demonstrating that venue is
improper." Simon v. Ward, 80 F. Supp. 2d 464, 467 (E.D. Pa. 2000) (citing Myers, 695 F.2d at
724). The defendant also bears the burden of establishing that a venue transfer is warranted. Id.
at 470. “Although §1404(a) gives a district court the discretion to decide a motion on a case-bycase basis, these motions are not to be granted liberally." Pro Spice, Inc. v. Omni Trade Group,
Inc., 173 F. Supp. 2d 336, 339 (E.D. Pa. 2001). Furthermore, "in ruling on defendant's [transfer]
motion the plaintiff's choice of venue should not be lightly disturbed." Id. (quoting Jumara v.
State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)) (internal citations omitted).

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IV. Analysis
A. Parties’ Contentions
Defendants’ first argument in support of their motion to transfer venue is that the only
proper venue for this litigation is the Middle District. (ECF 6-1, Defs.’ Mem. in Supp. of Mot. at
5.) [hereinafter “Defs.’ Mem.”] While a plaintiff’s choice of venue is to be given great
deference, it is given less deference when it is not the plaintiff’s home forum. (ECF 9, Defs.’
Reply at 3.) Venue is proper in the Middle District under §1391(b)(2) because all of the events
which gave rise to the suit occurred there. (ECF 6-1, Defs.’ Mem. at 5.) Specifically, the scene
of the accident, all emergency responders, medical service agencies, and hospital witnesses are
all located in the Middle District. (Id.) Defendants further suggest that all of the aforementioned
witnesses to the accident are more than 100 miles from this courthouse in the Eastern District of
Pennsylvania. Therefore, the Court will be unable to compel the witnesses for a trial, hearing, or
deposition under F.R.C.P 45(c)(1)(A) which states that a witness can only be commanded by
subpoena “within 100 miles of where the person resides, is employed, or regularly transacts
business in person.” (Id. at 6.) Defendants contend that these witnesses are essential to their
defense because the witnesses will speak to the seriousness and permanency of the Plaintiffs’
injuries. (Id.) Moreover, to require these public servants to travel will be a substantial burden
onto them because they would lose income and incur the travel expense. (ECF 9, Defs.’ Reply at
4.) Further, Defendants assert that pursuant to §1391(c) this Court does not have jurisdiction
over Best because he neither resides nor has sufficient contacts with the Eastern District. (ECF
6-1, Defs.’ Mem. at 7.) Finally, Best’s residence is 77 miles closer to the Middle District than to
the Eastern District. (ECF 9, Defs.’ Reply at 6.)

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Plaintiffs, on the other hand, argue that venue is proper in the Eastern District under
§1391(b) and (c). (ECF 7-4, Pls.’ Mem. in Opp. of Mot. at 5.) [hereinafter “Pls.’ Mem.”] More
specifically, under §1391(b) a civil action may be brought in “a judicial district in which any
defendant resides, if all the defendants are residents of the State in which the district is located.
(Id.) When the defendant is a corporation, as is the case here, it shall be considered to reside in
any judicial district in which it would be subject to personal jurisdiction. (Id.) Further, a
defendant corporation is subject to general personal jurisdiction in the location of incorporation
and the principal place of business. (Id. at 12.) Therefore, since Arsenberger is a Pennsylvania
corporation, Plaintiffs contend that it is subject to general personal jurisdiction in the Eastern
District, as is Best. (Id.) Plaintiffs contend that because venue is proper in the Eastern District, a
transfer analysis must be done under §1404(a) rather than §1406, the latter of which is used
when original venue is improper. (Id. at 13.) Moreover, Plaintiffs note that the Court must
consider both public and private interests to determine if the convenience of the parties,
witnesses, and the interest of justice are benefitted from transferring the action to another venue.
(Id. at 13-14.) Of import are additional physical and monetary burdens placed on the Plaintiffs if
they are required to travel to Scranton over Philadelphia. (Id. at 15.) Lastly, the overall
convenience to the Plaintiffs and their witnesses support the chosen venue of the Eastern District.
(Id. at 15-16.) Plaintiffs argue that while they have provided names and locations of their
intended witnesses to demonstrate the inconvenience the Middle District would impose, the
Defendants have been less than forthcoming with providing actual names, home addresses or
work addresses of their potential witnesses. (Id. at 15.)

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B. Discussion
Before the Motion to Transfer Venue can be evaluated under Rule 12(b)(3), the Court
must first determine if venue is proper in the Eastern District. Manning v. Flannery, No. 0903190, 2010 U.S. Dist. LEXIS 1091, at *12 (E.D. Pa. Jan. 6, 2010). As a preliminary matter, the
Court must note that “a motion to dismiss for improper venue is not an attack on jurisdiction but
only an affirmative dilatory defense.” Myers, 695 F.2d at 724; see also Thrivest Legal Funding,
LLC v. Gilberg, No. 16-03931, 2017 U.S. Dist. LEXIS 50183, at *14 (E.D. Pa. Apr. 3, 2017).
While reasonable minds have differed on which party bears the burden of proof, this Court holds
that the defendant who asserted the affirmative defense has the burden of proof. Compare
Pendergrass-Walker v. Guy M. Turner, Inc., No. 16-5630, 2017 U.S. Dist. LEXIS 95444, at *4
(E.D. Pa. June 21, 2017) (holding defendant bears the burden of proof to show venue is
improper), and Mullen v. Norfolk S. Ry., No. 13-6348, 2014 U.S. Dist. LEXIS 48153, at *25
(E.D. Pa. Apr. 8, 2014) (Baylson, J.) (holding movant defendant bears the burden of establish
venue should be transferred), with Johnson v. Gabriel Bros., No. 13-07415, 2014 U.S. Dist.
LEXIS 87600, at *5 (E.D. Pa. June 27, 2014) (holding it is the plaintiffs burden to establish
sufficient contacts to support their choice of venue), and Gaskin v. Pennsylvania, No. 94-4048,
1995 U.S. Dist. LEXIS 4272, at *5 (E.D. Pa. Mar. 28, 1995) (holding it is the plaintiff’s burden
to prove their choice of venue is proper). Ultimately, the plaintiff need not show that the chosen
venue is proper because “venue rules are rules of convenience for defendants, and [the]
defendant therefore has a responsibility of asserting its privilege.” Simon, 80 F. Supp. 2d at 467.
With this in mind, we first look to 28 U.S.C. §1391 to determine if venue is proper.
Any analysis to determine if venue is improper under 28 U.S.C. §1406, or in the
alternative should be transferred pursuant to 28 U.S.C. §1404(a), must begin by assessing if the

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current venue is proper. Thrivest, 2017 U.S. Dist. LEXIS 50183, at *18. In support of their
motion, Defendants largely rely on 28 U.S.C. §1391(b)(2) to support the argument that the only
proper venue for this action is the Middle District, rather that the statute in its entirety. (ECF 61, Defs.’ Mem. ¶ 5.) Under 28 U.S.C. §1391 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.
28 U.S.C.S. § 1391(b).
Applying the language of §1391(b)(1) to this instant case, the Eastern District will be
considered a proper venue if at least one of the defendants resides in the Eastern District and all
of the defendants reside within the state of Pennsylvania. Manning, 2010 U.S. Dist. LEXIS
1091, at *12. It is not disputed and all parties acknowledge that Best resides in Clarion,
Pennsylvania which is in the Western District. (ECF 7, Pls.’ Resp. at 21.) At issue rather, is
whether or not Arsenberger, as a corporation, resides in the Eastern District.
For venue purposes, a defendant corporation shall be deemed to reside “in any judicial
district in which such defendant is subject to the court's personal jurisdiction with respect to the
civil action in question.” 28 U.S.C. §1391(c)(2). The “paradigm forum” for a corporation is its
principle place of business or place of incorporation. Daimler AG v. Bauman, 134 S. Ct. 746,

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760 (2014). For a corporation that resides in a State which has multiple federal districts, like
Pennsylvania, §1391(d) provides further guidance:
For purposes of venue under this chapter, in a State which has more than one judicial
district and in which a defendant that is a corporation is subject to personal jurisdiction at
the time an action is commenced, such corporation shall be deemed to reside in any
district in that State within which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State, and, if there is no such district, the
corporation shall be deemed to reside in the district within which it has the most
significant contacts.
28 U.S.C. §1391(d). Therefore, this case turns on if Arsenberger is subject to personal
jurisdiction in the Eastern District, as if it were a separate State. Henning v. Suarez Corp. Indus.,
713 F. Supp. 2d 459, 464 (E.D. Pa. 2010) (reasoning when a claim brought against a corporation
arose out of the Middle District of Pennsylvania and the action was brought in the Eastern
District of Pennsylvania, the Rule 12(b)(3) motion ultimately turned on if the defendant
corporation was subject to personal jurisdiction in the Eastern District); see also Johnson, 2014
U.S. Dist. LEXIS 87600, at *5 (same).
The Court’s personal jurisdiction analysis necessarily begins with the Pennsylvania longarm statute. Pendergrass-Walker, 2017 U.S. Dist. LEXIS 95444, at *5; see also Manning, 2010
U.S. Dist. LEXIS 1091, at *13-14. Pennsylvania’s long-arm statute allows jurisdiction "to the
fullest extent allowed under the Constitution of the United States and may be based on the most
minimum contact with this Commonwealth allowed under the Constitution of the United States."
Manning, 2010 U.S. Dist. LEXIS 1091, at *13-14 (citing 42 Pa. Cons. Stat. Ann. §5322(b)). The
Due Process Clause of the 14th Amendment requires that "the defendant has 'certain minimum

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contacts with . . . [Pennsylvania] such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.'” Id. at *14 (quoting O'Connor v. Sandy Lane Hotel
Co., 496 F.3d 312, 316-317 (3d Cir. 2007)). From the consideration of due process, comes two
bases of personal jurisdiction: specific and general. Id. Unlike specific jurisdiction, general
jurisdiction is not focused on the relationship of the claim to the forum but rather the relationship
between the defendant and the forum. Macmillan-Bell v. Kang, No. 15-5411, 2015 U.S. Dist.
LEXIS 156399, at *7 (E.D. Pa. Nov. 19, 2015). General jurisdiction is dependent on a defendant
having contacts with the chosen forum that are “systematic and continuous.” Id.
There are a number of factors which the court evaluates in determining if a defendant’s
contacts with the forum meet the high threshold required under the systematic and continuous
analysis to establish general jurisdiction. Manning, 2010 U.S. Dist. LEXIS 1091, at *17-18.
While part of the analysis includes a consideration of whether or not the defendant maintains an
office or employees in the forum, more considerable weight is given to the quality and nature of
the defendant’s contacts. Id. at *17. The core of the analysis is “whether the business dealings
are central to the defendant’s business and how frequently such dealings occur.” Id. at *17-18
(quoting Pierce v. Hayward Indus., Inc., No. 05-5322, 2006 U.S. Dist. LEXIS 16472, at *3 (E.D.
Pa. Apr. 4, 2006)).
Here, Plaintiffs assert that Arsenberger is subject to personal jurisdiction in the Eastern
District because as a Pennsylvania corporation and interstate trucking company, they haul freight
for millions of miles throughout Pennsylvania, presumably in the Eastern District. (ECF 7, Pls.’
Mem. at 5.) Defendants, on the other hand, do not to engage with this argument. Instead,
Defendants solely rely on the contention that venue is only proper in the Middle District pursuant
to §1391(b)(2) given that the suit arises from an accident in the Middle District. (ECF 6-1,

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Defs.’ Mem. 5.) The Defendants are correct that venue would be proper in the Middle District
under §1391(b)(2) due to the location of the accident. Pendergrass-Walker, 2017 U.S. Dist.
LEXIS 95444, at *15 (holding venue proper in Eastern District of North Carolina under
§1391(b)(2) because accident occurred in North Carolina instead of in the Eastern District of
Pennsylvania). However, venue rules are rules of convenience for the defendant and therefore
the defendant must carry the burden of proof to prove that venue is improper. Simon, 80 F.
Supp. 2d at 467. “Burdens of proof are meaningful elements of legal analysis, and occasionally,
where the evidentiary record is wanting, the burden of proof will determine the outcome of a
motion.” Id. at 472. Here, Defendants have failed to carry their burden to show that venue
would be improper under §1391(b)(1). Without any evidence to the contrary, the Court finds
that venue is proper in the Eastern District pursuant to §1391 because all defendants are residents
of Pennsylvania and Arsenberger is a Pennsylvania corporation whose contacts with the Eastern
District subject it to general jurisdiction here.
The Court next considers whether transfer to the Middle District is appropriate under
§1404(a) or in the alternative §1406. Because venue is proper in this district, the correct analysis
proceeds under 28 U.S.C §1404(a) rather than §1406, which is invoked when the original venue
is improper. Jumara, 55 F.3d at 875.
“For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been brought or
to any district or division to which all parties have consented.” 28 U.S.C. 1404(a). The court’s
role is to provide an “individualized, case-by-case consideration of convenience and fairness”
when determining if a motion to transfer should be granted under §1404(a). Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).

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While it is ultimately up to the court’s discretion, a transfer of venue “is not to be liberally
granted.” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (quoting Handlos v.
Litton Industries, Inc., 304 F. Supp. 347, 352 (E.D.Wis.1969)). Again, the burden of proof rests
with the defendant to show that a transfer of venue is warranted. Jumara, 55 F.3d at 879. As
such, the motion to transfer must be supported with “affidavits, depositions, stipulations, or other
documents containing facts that would tend to establish the necessary elements for a transfer
under §1404(a).” Plum Tree, Inc. v. Stockment, 488 F.2d 754, 758-759 (3d Cir. 1973).
Defendants correctly assert that although a plaintiff’s choice of forum is typically given
“great deference,” less weight is given when the plaintiff chooses a district in which plaintiff is
not a resident. Mullen, 2014 U.S. Dist. LEXIS 48153, at *25-26. Moreover, a plaintiff’s choice
of venue receives less deference when it is not where the operative facts arise. Id. While there is
no exact formula for deciding if venue should be transferred on the basis of §1404(a), courts
typically the following public and private interests when making the decision:
The private interests have included: plaintiff's forum preference as manifested in the
original choice; the defendant's preference; whether the claim arose elsewhere; the
convenience of the parties as indicated by their relative physical and financial condition;
the convenience of the witnesses -- but only to the extent that the witnesses may actually
be unavailable for trial in one of the fora; and the location of books and records (similarly
limited to the extent that the files could not be produced in the alternative forum).

The public interests have included: the enforceability of the judgment; practical
considerations that could make the trial easy, expeditious, or inexpensive; the relative
administrative difficulty in the two fora resulting from court congestion; the local interest

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in deciding local controversies at home; the public policies of the fora; and the familiarity
of the trial judge with the applicable state law in diversity cases.
Jumara, 55 F.3d at 880-881 (internal citation marks omitted).
In resolving a venue dispute centered around a forum selection clause, the Jumara court
reasoned that given the close proximity of the two fora (the Middle District and the Eastern
District) there was no compelling reason in the factors listed above— the relative physical and
financial condition of the parties, the location of the witnesses, the location of the documentary
evidence, and the relative expense or expeditiousness of trial— to support overriding the parties’
forum preference as stated in the contract. Id. at 882. Moreover, the court considered the close
proximity of the Middle District and Eastern District again when it noted that any analysis under
“the interest-of justice” is obscured given that they are adjoining districts. Id.
Unlike Jumara, in which the court’s analysis focused on the forum selection clause, the
§1404(a) dispute here inevitably entails an analysis of the convenience to the parties. Within
that, the court finds a compelling private interest factor which was not present in Jumara, which
is the relative physical condition of the parties. Plaintiffs allege in their complaint that they both
have sustained serious and permanent injuries which limit their ability to travel. (ECF 1, Compl.
¶ 11.) Accordingly, Plaintiffs’ argue that given Philadelphia’s superior public transportation
system, the Eastern District would be both a safer and more convenient forum. Id. Defendants
chose not to engage with this argument except to assert that Police Crash Report qualifies Joanne
McMahon and Arthur McMahon’s injuries as “minor” and “moderate,” respectively. (ECF 9,
Defs.’ Reply at 5.)
A significant amount of each parties’ argument has centered around the chosen venue’s
convenience of the witnesses, and rightfully so. Both the plain text of the statute and case law

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speak to the need to evaluate the convenience of the forum for witnesses involved in the
litigation. 28 U.S.C. §1404(a); see Kahhan v. Fort Lauderdale, 566 F. Supp. 736, 739 (E.D. Pa.
1983) (reasoning that convenience of the witnesses “weighs heavily” when deciding on a motion
to transfer venue under §1404(a)); see also Gonzalez v. Elec. Control Sys., No. 93-3107, 1993
U.S. Dist. LEXIS 12973, at *11 (E.D. Pa. Sep. 16, 1993) (denying defendant’s motion to transfer
venue under §1404(a) because defendant failed to meet its burden of proof, in part for failure to
provide evidence showing inconvenience to witnesses). To support a transfer of venue based on
convenience to the witnesses, the moving party must include “a list of the names and addresses
of witnesses whom the moving party plans to call, and affidavits showing the materiality of the
matter to which these witnesses will testify. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756757 (3d Cir. 1973). Other examples of documents which would support a motion to transfer
venue would be:
“[S]tatements by the moving parties of the business difficulties or personal hardships that
might result from their having to defend against the suit in the district court where it was
originally brought, affidavits concerning the relative ease of access to sources of
documentary evidence, and other materials where appropriate.”
Plum Tree, 488 F.2d n.2. The need for this supporting documentation is two-fold when the
parties disagree as to the facts supporting the defendant’s motion to transfer venue. Gonzalez,
1993 U.S. Dist. LEXIS 12973, at *9-10.
In this instant case, Defendants have failed to provide the Court with supporting
documentation to show the inconvenience to the witnesses required to transfer venue under
§1404(a). Defendants have filed an affidavit, but in place of providing “names and addresses of
witnesses” the Defendants simply provide broad statements that “all emergency and medical

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witnesses…are located in the judicial district for the United States District Court for the Middle
District.” (ECF 6-1, Defs.’ Mem. at 5.); Cf. Fellner v. Phila. Toboggan Coasters, Inc., No. 052052, 2005 U.S. Dist. LEXIS 23839, at *19 (E.D. Pa. Oct. 18, 2005) (granting Rule 12(b)(3)
motion to transfer venue reasoning that convenience to the witnesses was strongly supported by
affidavits of seven witnesses located in Indiana which indicated they would not voluntarily
appear in the chosen forum of the Eastern District). While the Court recognizes Defendants’
argument that many of their witnesses will be outside the compulsory subpoena 100-mile radius,
the Court must also bear in mind that transfers of venue are not to be granted liberally and the
Defendants have failed to provide any level of detail required to demonstrate a true
inconvenience to the witnesses as set forth in Plum Tree. Fed. R. Civ. P. 45; Pro Spice, 173 F.
Supp. 2d at 339.
In sum, the Defendants have not met their burden of proof showing that a transfer of
venue is warranted under §1404(a). Where the evidentiary record is lacking, the burden of proof
will determine the outcome of a motion. Simon, 80 F. Supp. 2d at 472. Here, the Defendants
have failed to prove that in the interest of justice, the inconvenience of parties and witnesses rises
to the level required to support a transfer of venue to the Middle District. In addition to the lack
of evidence supporting the inconvenience to the witnesses, the Defendants have provided no
statements to speak to the business difficulties or personal hardships that might result if they
must defend the suit in the Eastern District other than noting that it is 77 miles further away than
the Middle District. (ECF 9, Defs.’ Reply at 6.) In the absence of compelling inconvenience to
the parties and witnesses, where the districts are adjacent and the interests of justice are
obscured, the Court finds that the transfer to the Middle District is unwarranted.

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III.

Conclusion
For the reasons discussed above, Defendants’ motion is denied without prejudice. An

appropriate order follows.
O:\CIVIL 17\17-1242 McMahon v Arsenberger\17cv1242 memo re motion to transfer venue.docx

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