DUNBAR et al v. EVINE LIVE, INC

Filing 56

MEMORANDUM ORDER denying #9 Defendant Snow Time's Motion to Dismiss for Lack of Jurisdiction, or alternatively, Motion to Transfer Case; and denying #36 Defendant Peak Resorts' Motion to Dismiss or alternatively, Motion to Transfer Case. Signed by Judge Arthur J. Schwab on 1/11/2018. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LYNDON DUNBAR, RACHEL
GNIEWKOWSKI
17cv1527
ELECTRONICALLY FILED

Plaintiffs,
v.
EVINE LIVE, INC,
Defendant.

TOMMY BROWN,
Plaintiff,

17cv1528
ELECTRONICALLY FILED

v.
SNOW TIME INC,
Defendant.

TOMMY BROWN, DAVID NEW,
Plaintiffs,

17cv1545
ELECTRONICALLY FILED

v.
PEAK RESORTS, INC.,
Defendant.

MEMORANDUM ORDER OF COURT
Before the Court are two Motions for the Court’s consideration. The first Motion was
filed by Defendant, Snow Time, Inc. (“Snow Time”)., seeking a dismissal for improper venue, or

in the alternative, a transfer of venue to the United States District Court for the Middle District of
Pennsylvania. See doc. no. 9. The second Motion was filed by Defendant, Peak Resorts, Inc.
(“Peak Resort”), also seeking dismissal for improper venue, or in the alternative, a transfer of
venue to the United States District Court for the Middle District of Pennsylvania. See doc. no.
36. Counsel for Plaintiffs filed a Brief in Opposition to each of the Motions, and thus, the
matters are now ripe for disposition.
I.

STANDARD OF REVIEW
Under 28 U.S.C. § 1391, a plaintiff may bring a case in:
(1) a judicial district where any defendant resides, if all defendants reside
in the same State, (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) a judicial
district in which any defendant is subject to personal jurisdiction at the
time the action is commenced, if there is no district in which the action
may otherwise be brought.

28 U.S.C. § 1391(a)(1)–(3). See also Bockman v. First American Marketing Corp., 459
Fed.Appx. 157 (3d Cir. 2012).
A Motion to Dismiss predicated upon Rule 12(b)(3) requires that the “defendant ... bear
the burden of showing improper venue.” Myers v. Am. Dental Ass’n, 695 F.2d 716, 724–25 (3d
Cir. 1982).
II.

BACKGROUND
With respect to both Snow Time’s and Peak Resort’s Motions, Plaintiff’s respective

Complaints against each Defendant indicate that Plaintiff, Tommy Brown, resides in
Pennsylvania. See doc. no. 1, ¶ 13, filed in case number 17cv01528; and doc. no. 1, ¶ 15, filed in
case no. 17cv01545. According to the affidavit filed by Plaintiff Brown in Response to the
Motions to Dismiss in accordance with Fed.R.Civ. P. 12 (b)(3), or in the Alternative, Transfer

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Venue, Plaintiff specifically resides in Murrysville, Pennsylvania, which is located in the
Western District of Pennsylvania. See doc. no. 48-2 and doc. no. 49-2. Plaintiff Brown
attempted to utilize his computer reader software to access Defendant Snow Time’s website and
Defendant Peak Resorts’ website but was unable to do so because of a barrier he encountered
which rendered him unable to navigate the websites.
Defendant Snow Time’s Motion admits that “its principal mailing address and corporate
office is . . . York County, Pennsylvania, which is in the Middle District of Pennsylvania.” Doc.
no. 10 at p. 2. Defendant Peak Resorts Motion admits that it “is the parent company of various
legal entities that own and operate ski resorts. . . . A Peak Resorts[’] subsidiary owns and
operates two ski resorts located in the State of Pennsylvania . . . [b]oth of these ski resorts are
located in the Middle District of Pennsylvania.” Doc. no. 36, p. 2. Both Defendants admitted to
owning and operating websites, but both Defendants claim their websites are operated outside of
the Western District of Pennsylvania.
III.

ANALYSIS
Both Defendants argue that the case should be dismissed (or venue transferred to the

Middle District of Pennsylvania) based on improper venue under Federal Rule of Civil
Procedure Rule 12(b)(3), claiming that venue in the Western District of Pennsylvania is
improper. In support their motions, both Defendants cite 28 U.S.C. § 1391(b). As noted above,
Plaintiff may bring a case in:
(1) a judicial district where any defendant resides, if all defendants reside
in the same State, (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) a judicial
district in which any defendant is subject to personal jurisdiction at the
time the action is commenced, if there is no district in which the action
may otherwise be brought.

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In addition to the above, the party who challenges venue bears the burden of proving that
venue in the selected judicial district is improper. Myers v. Am. Dental Ass’n, 695 F.2d 716, 724
(3d Cir. 1982) (citation & footnote omitted). In deciding a Motion to Dismiss and/or Transfer
for Improper Venue under Rule 12(b)(3), the Court must generally accept as true the allegations
in the pleadings. Heft v. AAI Corp., 355 F.Supp.2d 757, 762 (M.D. Pa. 2005) (citing Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir.2002); Myers, 695 F.2d at 724) (footnote
omitted). In addition, “[t]he parties may submit affidavits in support of their positions, and may
stipulate as to certain facts, but the plaintiff is entitled to rely on the allegations of the complaint
absent evidentiary challenge.” Heft, 355 F.Supp.2d at 762 (citing Carteret Sav. Bank, F.A. v.
Shushan, 954 F.2d 141, 142 & n. 1 (3d Cir.1992); Myers, 695 F.2d at 724). In either event, the
Court is required to view the facts in the light most favorable to the Plaintiff. Id. (citing Carteret
and Myers, supra ). There is a strong presumption in favor of Plaintiff’s choice of forum. Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947); Shutte v. Armco Steel Corp. 431 F.2d 22, 25 (3d
Cir. 1970) (“It is black letter law that a plaintiff’s choice of a proper forum is a paramount
consideration in any determination of a transfer request, and that choice . . . should not be lightly
disturbed.”) (internal citation omitted).
The Plaintiff’s Complaints allege that he is resident of the Commonwealth of
Pennsylvania – the Complaint filed in Peak Resorts indicates that he is a resident of Allegheny
County, Pennsylvania. Plaintiff’s Declarations indicate that he attempted to access the
Defendants’ websites from his home Murrysville, which is located in the Western District of
Pennsylvania. The gravamen of these lawsuits is that the visually impaired Plaintiff encountered
barriers when trying to use his reader software to access the Defendants’ respective websites.
Because he made these attempts to access the Defendants’ websites from his Allegheny County

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based home, the Western District is where “a substantial part of the events or omissions giving
rise to the claim occurred.” Thus, venue is proper under § 1391(b)(2).
In addition, both of the Defendant’s websites offer directions to their resorts from
Pittsburgh, a city located within this District. Both websites also offer season passes to their
resorts. This information located on Defendants’ websites demonstrates to this Court that both
Defendants clearly intended for their websites to reach residents of this District.
IV.

CONCLUSION
For the above-stated reasons, the Court finds venue in this, the Western District of

Pennsylvania is indeed, proper.

ORDER
Based on the foregoing reasons and authority, the Motions to Dismiss filed by
Defendants, Snow Time, Inc. (doc. no. 9), and Defendant, Peak Resorts, Inc. (doc. no. 36), are
DENIED.
SO ORDERED this 11th day of January, 2018.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All ECF Registered Counsel of Record

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