Moore et al v. Industrial Maintenance Service of Tennessee, Inc. et al

Filing 57

ORDER granting 27 Motion to Dismiss. Signed by Judge S. Thomas Anderson on 5/30/12. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
DANNY MOORE and TRACY MOORE, )
)
Plaintiffs,
)
)
v.
)
No. 11-2938-STA-tmp
)
INDUSTRIAL MAINTENANCE
)
SERVICE OF TENNESSEE, INC.;
)
DESIGN-FAB, INC.; and GENERAL
)
ELECTRIC COMPANY,
)
)
Defendants.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANT GENERAL ELECTRIC COMPANY’S MOTION
TO DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, TO TRANSFER
TO THE EASTERN DIVISION
______________________________________________________________________________
Before the Court is Defendant General Electric Company’s (“GE”) Motion to Dismiss for
Improper Venue or, in the Alternative, to Transfer to the Eastern Division (D.E. # 27), filed on
January 30, 2012. Plaintiffs filed a Response (D.E. # 37) on February 26, 2012. GE filed a
Reply (D.E. # 38) on February 29, 2012. None of the other defendants have opposed GE’s
Motion. For the following reasons, GE’s Motion is GRANTED, and this case is hereby
TRANSFERRED to the Eastern Division of the Western District.
BACKGROUND
Plaintiffs filed their Complaint alleging negligence, res ipsa loquitur, and damages on
October 25, 2011. (D.E. # 1.) After Defendant Waste Management of Mississippi, Inc. (“Waste
Management”) filed its Amended Motion to Intervene, GE filed the Motion currently before the

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Court. (D.E. # 27.) Since that filing, the parties have engaged in discovery, and the Court
granted Waste Management’s Amended Motion.
In its Motion, GE argues that venue is improper in the Western Division because all of
the events giving rise to Plaintiffs’ claims occurred in McNairy County, which is in the Eastern
Division of the Western District. (GE’s Mot., D.E. # 27-1, at 3.) GE also points out that
although all corporate defendants are residents of the Western District for personal jurisdiction
purposes, for purposes of venue, Plaintiffs have not pled facts sufficient to show that they are
subject to personal jurisdiction in the Western Division. (Id. at 4.) Thus, GE argues that the
only proper venue for this case is the Eastern Division of the Western District. (Id.)
Alternatively, GE avers that even if venue is proper in the Western Division, the Court should
still transfer the case to the Eastern Division “in the interest of justice.” (Id. at 5, 8-9.) GE
submits that Plaintiffs’ choice of the Western Division as the venue for this lawsuit is entitled to
little or no deference and that the Eastern Division will be more convenient for the parties and
witnesses. (Id. at 5-8.)
In response, Plaintiffs argue that GE waived any objection to venue in federal court.
(Pls.’ Resp., D.E. # 37, at 2.) Plaintiffs confuse the Western Division and the Western District
and contend that because venue is proper in the Western District, it is also proper in the Western
Division. (Id. at 2-3.) Alternatively, Plaintiffs urge the Court to transfer the case to the Eastern
Division in lieu of dismissing it. (Id. at 3.) In reply, GE notes that it does not dispute that venue
is proper in the Western District; it also points out that Plaintiffs rely on pre-1948 cases
regarding waiver of venue defenses, which were abrogated by the first enactment of 28 U.S.C. §
1391. (GE’s Reply, D.E. # 38, at 1.) GE again argues that none of the defendants “reside” in the

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Western Division as defined in the Local Rules; therefore, GE avers that the Court must transfer
the case to the Eastern Division. (Id. at 2-3.)
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(3) (“Rule 12(b)(3)”), a defendant may move
to dismiss the plaintiff’s complaint “for improper venue.”1 On a Rule 12(b)(3) motion to
dismiss, “the plaintiff bears the burden of proving that venue is proper. The Court may examine
facts outside the complaint but must draw all reasonable inferences and resolve factual conflicts
in favor of the plaintiff.”2 If the court finds that venue is improper, the case may be dismissed or
transferred to the district in which it could have been brought.3
Local Rule 3.3 (“L.R. 3.3”) governs the commencement of cases in this District’s
different Divisions. The only counties in the Western Division are Fayette, Lauderdale, Shelby,
and Tipton Counties.4 The remaining counties in the Western District form the Eastern Division,
including Carroll and McNairy Counties.5 A case against multiple defendants “may be brought
in any division of the District in which one of the defendants resides, or in the division in which
the claim arose or the event complained of occurred.”6 For purposes of this rule, “a corporation

1

Fed. R. Civ. P. 12(b)(3).

2

Gone to the Beach, LLC v. Choicepoint Servs., Inc., 434 F. Supp. 2d 534, 536-37
(W.D. Tenn. 2006) (quoting Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F. Supp. 2d 1014,
1017 (E.D. Mich. 2002)).
3

28 U.S.C. § 1406(a).

4

L.R. 3.3(a); see also 28 U.S.C. § 123(c)(2).

5

L.R. 3.3(a); see also 28 U.S.C. § 123(c)(1).

6

L.R. 3.3(b)(2).
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shall be deemed to be a resident of the division in which it has its principal place of business in
the District, if it has a place of business in the District.”7 L.R. 3.3 prohibits dismissing cases
filed in the improper Division; instead, it mandates that courts “shall transfer the action to a
proper division upon motion of a party.”8
ANALYSIS
The Court finds GE’s arguments persuasive. According to the Complaint, the incident
resulting in Plaintiffs’ alleged damages occurred in Selmer, Tennessee, which is located in
McNairy County in the Eastern Division.9 Plaintiffs and Waste Management are citizens of
Mississippi.10 Both Defendants Design-Fab, Inc. and Industrial Maintenance Services of
Tennessee, Inc. have their principal places of business in Cedar Grove, Tennessee, which is in
Carroll County in the Eastern Division.11 Although GE’s principal place of business is in
Connecticut,12 for purposes of L.R. 3.3(b)(4), its principal place of business is at its sole place of
business in the Western District: Selmer, Tennessee, which is in McNairy County in the Eastern
Division.13

7

L.R. 3.3(b)(4).

8

L.R. 3.3(c).

9

(Compl. ¶ 1.)

10

(Id. ¶ 4.)

11

(Id. ¶ 5-6.)

12

(Id. ¶ 7.)

13

(GE’s Reply, D.E. # 38, at 2.)
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Thus, Plaintiffs have not shown that venue is proper in the Western Division. While
venue is undoubtedly proper in the Western District, GE’s Motion to Dismiss is premised upon
Plaintiffs’ failure to file their lawsuit in the proper Division, not the proper District. The Court
finds that neither prong of L.R. 3.3(b)(2) indicates that venue is proper in the Western Division.
None of Defendants reside in the Western Division under the definition of “residency” at L.R.
3.3(b)(4), and the event complained of did not occur in the Western Division. Accordingly,
venue is not proper in the Western Division. However, both prongs of L.R. 3.3(b)(2) are
satisfied if this case were to be filed in the Eastern Division: all three defendants having places
of business in Tennessee reside in the Eastern Division, and the claim arose in the Eastern
Division. Accordingly, venue is proper in the Eastern Division. Therefore, GE’s Motion is
GRANTED, and this case is hereby TRANSFERRED to the Eastern Division pursuant to L.R.
3.3(c).
CONCLUSION
For the reasons set forth above, GE’s Motion is GRANTED. This case is hereby
TRANSFERRED to the Eastern Division.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: May 30, 2012.

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