Sixth Circuit Places the Burden on Plaintiffs to Prove Venue on Rule 12(b)(3) Motions and Narrows What Counts as a “Substantial Part” Under 28 U.S.C. § 1391(b)(2)

Introduction

In Karl Tobien v. Nationwide General Insurance Company, No. 24-5575 (6th Cir. Apr. 2, 2025), the Sixth Circuit (Judge Thapar, joined by Judges Nalbandian and Ritz) issued a precedential opinion that resolves a longstanding intra-circuit split over who bears the burden on a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). The court held that the plaintiff bears the burden—by a preponderance of the evidence—to establish that venue is proper once the defendant challenges it. In doing so, the court aligned the Sixth Circuit with the majority of other circuits and expressly disagreed with contrary authority in the Third and Eighth Circuits.

The case stems from a dog-bite incident in Loveland, Ohio. The plaintiff, a Kentucky resident who was selling services door-to-door, was bitten on an Ohio homeowner’s property. He later sued the homeowners in the Southern District of Ohio (a case that was dismissed by agreement) and, relevant here, sued the homeowners’ insurer—Nationwide—in the Eastern District of Kentucky, bringing Kentucky-law bad-faith and unfair claims settlement practices claims, plus punitive damages. Nationwide moved to dismiss for improper venue. The district court granted the motion and declined to transfer the case, and the Sixth Circuit affirmed.

Beyond the allocation of the burden of proof, the court offered practical guidance on how venue motions are adjudicated, what qualifies as a “substantial part of the events or omissions giving rise to the claim” under § 1391(b)(2), the standards for venue-related discovery, and when dismissal rather than transfer under 28 U.S.C. § 1406(a) is “in the interest of justice,” particularly where the claims would fail on the merits in the transferee forum.

Summary of the Opinion

Burden of proof: In the Sixth Circuit, once a defendant mounts a Rule 12(b)(3) improper-venue challenge, the plaintiff bears the burden to prove proper venue by a preponderance of the evidence. The court adopts the majority rule and rejects the contrary approach of the Third and (to the extent applicable) Eighth Circuits.
Procedural standard on a paper record: A district court may resolve a 12(b)(3) motion on the papers, after limited discovery, or after an evidentiary hearing. If the court decides the motion on the papers alone, the plaintiff must at least make a prima facie showing that venue is proper through pleadings and affidavits; conclusory assertions will not suffice.
What is not “a substantial part of the events or omissions”: A plaintiff’s residence in the district, the fact that a defendant does business there, correspondence the plaintiff sent or received from that district, and the plaintiff’s experience of economic effects there do not, without more, constitute “a substantial part of the events or omissions giving rise to the claim” within the meaning of § 1391(b)(2)—especially for an insurance bad-faith dispute predicated on an underlying tort and a coverage decision centered elsewhere.
Discovery denied: A barebones, last-paragraph request for venue discovery is insufficient. Venue discovery is governed by the same principles as jurisdictional discovery and requires a specific, detailed proffer of what discovery is sought and what it would likely show.
Dismissal vs. transfer under § 1406(a): The district court did not abuse its discretion by dismissing rather than transferring to the Southern District of Ohio. Looking to Ohio’s choice-of-law rules (via Restatement (Second) of Conflict of Laws), Ohio substantive law would govern and would foreclose the plaintiff’s third-party bad-faith claim absent a judgment against the insured tortfeasors, render Kentucky’s Unfair Claims Settlement Practices Act inapplicable, and leave no standalone punitive-damages claim. A merits “peek” to assess whether transfer serves the “interest of justice” was not challenged on appeal, and the Sixth Circuit upheld dismissal on that basis.
Issues not reached: The court did not address whether venue would be proper under § 1391(b)(1) through entity “residence” tied to personal jurisdiction under § 1391(c)(2), because the plaintiff never advanced that theory; nor did it opine on the propriety of dismissing with prejudice in an improper-venue context, as those points were not contested on appeal.

Factual and Procedural Background

The plaintiff, Karl Tobien, was bitten by a dog while canvassing in Loveland, Ohio. He initially sued the homeowners in the Southern District of Ohio, but that case was dismissed by agreement. He then submitted an insurance claim to the homeowners’ insurer, Nationwide General Insurance Company, and—after the claim was denied—filed a separate federal action in the Eastern District of Kentucky against Nationwide. His complaint alleged:

Violations of Kentucky’s Unfair Claims Settlement Practices Act,
Common-law bad faith, and
Punitive damages.

Nationwide moved to dismiss for improper venue under Rule 12(b)(3). The district court concluded that most relevant events occurred in Ohio and dismissed the case rather than transfer it to a proper venue (e.g., the Southern District of Ohio). Tobien appealed, challenging both the venue ruling and the denial of transfer.

Analysis

Precedents and Authorities Discussed

28 U.S.C. § 1391(b): General venue statute identifying proper venue as (1) a district where a defendant resides, (2) a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) if neither applies, any district where a defendant is subject to personal jurisdiction.
28 U.S.C. § 1391(c)(1)-(2): Defines “residence” for venue purposes—individuals by domicile; entities by any district where they are subject to personal jurisdiction with respect to the action.
28 U.S.C. § 1406(a): Authorizes transfer or dismissal when a case is filed in the wrong venue, guided by the “interest of justice.”
Atlantic Marine Construction Co. v. U.S. District Court (2013): Recognizes a plaintiff’s “venue privilege” when choosing among proper venues and explains that venue rules protect defendants from unfair or inconvenient forums.
Van Dusen v. Barrack (1964): A § 1404(a) transfer assumes venue is proper in the transferor forum; by contrast, a Rule 12(b)(3) motion contests the propriety of the forum itself.
Leroy v. Great Western United Corp. (1979): Venue and personal jurisdiction are both personal privileges of the defendant; both are affirmative defenses unrelated to the merits.
Ford Motor Co. v. Montana Eighth Judicial District Court (2021): Discusses personal jurisdiction’s “paradigm” for individuals’ general jurisdiction at domicile—used to show the kinship between venue residence rules and jurisdiction.
Sixth Circuit analogies from personal jurisdiction doctrine: Theunissen v. Matthews (1991) and Serras v. First Tennessee Bank (1989) (procedural options and prima facie standard on a paper record), and Peters Broadcasting Engineering v. 24 Capital (2022) (plaintiff bears the burden on personal jurisdiction).
Circuit split on burden of proof for improper venue: Majority placing burden on plaintiff (Second, Fourth, First, and Seventh Circuit authorities cited) versus Third Circuit (Myers v. American Dental Association) and Eighth Circuit (United States v. Orshek)—which the Sixth Circuit rejects.
District-level guidance on “substantial part”: Alltech, Inc. v. Carter (E.D. Ky. 2010) and Konote v. Beattie (S.D. Ohio 2024) (economic harm experienced in the district is insufficient standing alone to establish venue).
Choice of law and substantive Ohio law: Morgan v. Biro Manufacturing (Ohio 1984) (adopting Restatement (Second) of Conflict of Laws); Nationwide Mut. Ins. Co. v. Black (Ohio Ct. App. 1995) (limited weight to domicile when the parties differ); Adams v. Medical Protective Co. (S.D. Ohio 2022) (applied Ohio law to similar insurance bad-faith claims); Grimberg v. Blackbird Baking Co. (Ohio Ct. App. 2023) (no third-party bad-faith action absent a judgment against the tortfeasor).
Phillips v. Seiter (7th Cir. 1999): Recognizes a district court’s ability to take a “peek at the merits” when deciding whether transfer serves the interest of justice under § 1406(a); the Sixth Circuit notes the plaintiff did not contest that authority here.

Legal Reasoning

1) Who bears the burden on a Rule 12(b)(3) improper-venue motion?

The Sixth Circuit adopts the majority view: the plaintiff bears the burden to prove venue by a preponderance of the evidence once the defendant properly challenges venue. The court finds this allocation sensible because:

It is the plaintiff’s obligation to file in a permissible forum. Venue is a personal privilege of the defendant, akin to personal jurisdiction, and implicates the forum’s authority to hear the case as between the parties.
Venue doctrine closely tracks personal-jurisdiction doctrine. Plaintiffs already bear the burden to establish personal jurisdiction, and venue’s statutory framework (especially for entity “residence” and the fallback provision in § 1391(b)(3)) ties venue to personal jurisdiction. Using different burdens for closely related determinations would be illogical.
The Third Circuit’s contrary reasoning in Myers conflated “affirmative substantive defenses,” which do go to the merits and are typically borne by defendants, with “affirmative dilatory defenses” such as venue and personal jurisdiction. Dilatory defenses often require the plaintiff to demonstrate the court’s authority over the case.

Importantly, the court distinguishes this posture from § 1404(a) transfer motions between two proper venues, where the defendant bears the burden to justify overriding the plaintiff’s venue privilege. That rationale does not carry over when the very propriety of the chosen venue is at issue.

2) How should a district court decide a venue motion procedurally?

Echoing personal-jurisdiction practice, the court explains that a district court has three procedural options: decide the motion on the papers, hold an evidentiary hearing, or allow targeted discovery. Regardless of the path, the plaintiff always bears the burden to establish venue.

When the court decides the motion on the papers, the plaintiff must at least make a prima facie showing that, if the pleadings and affidavits are accepted as true, venue is proper. Here, the plaintiff failed to support his position with competent factual materials—offering instead only a vague assertion that a “substantial portion” of the insurer’s communications and investigation occurred in Kentucky, without affidavits or specifics.

3) What qualifies as “a substantial part of the events or omissions giving rise to the claim” under § 1391(b)(2)?

The court holds that the following do not, without more, satisfy § 1391(b)(2):

A plaintiff’s residence in the district;
The fact that a defendant does business or maintains a registered agent in the state;
Correspondence that the plaintiff sent to, or received from, the defendant while the plaintiff was located in the district; and
The plaintiff’s experience of economic effects in the district.

For an insurance bad-faith claim, the “events or omissions giving rise” center on the underlying incident (the dog bite in Ohio) and the insurer’s claim-handling conduct culminating in the denial (which the record did not tie to Kentucky). Allowing venue to hinge on where a plaintiff happened to send emails or feel financial effects would invite forum manipulation—something Congress deliberately limited in the 1990 amendments to the venue statute and something the Supreme Court has cautioned against when discussing venue’s defendant-protective function.

4) Venue discovery

Venue discovery is governed by the same standards as jurisdictional discovery. A party seeking it must articulate, with specificity, what information is sought and how it would establish venue. A one-paragraph, generalized request is insufficient. Here, the plaintiff did not request, with particularity, discovery directed to the location of Nationwide’s claim adjusters or decisionmakers and thus failed to justify venue discovery before dismissal.

5) Dismissal vs. transfer under § 1406(a)

If venue is improper, a district court may dismiss or, “in the interest of justice,” transfer the case to a proper venue. The court affirmed the district court’s decision to dismiss rather than transfer to the Southern District of Ohio because:

Ohio’s choice-of-law rules (applied by a transferee Ohio federal court) would point to Ohio substantive law under the Restatement (Second) “most significant relationship” test. The dog bite occurred in Ohio; the policy at issue was issued to Ohio homeowners by an Ohio-based insurer; the plaintiff’s Kentucky domicile carried limited weight in this configuration.
Under Ohio law, a third-party claimant has no cause of action for bad faith against the tortfeasor’s insurer absent a judgment against the insured—something the plaintiff lacked. The Kentucky UCSPA would not apply once Ohio law governs, and a freestanding punitive-damages claim cannot exist without an underlying cause of action.
The plaintiff did not contest the district court’s authority to take a limited “peek at the merits” when deciding whether transfer serves the interest of justice, nor did he challenge the dismissal with prejudice; the Sixth Circuit therefore left those issues undisturbed and concluded that, on this record, dismissal was not an abuse of discretion.

Impact and Implications

A. Clarified burden and procedure for venue challenges in the Sixth Circuit

This opinion settles the intra-circuit disagreement and brings the Sixth Circuit into line with the dominant approach: plaintiffs must carry the burden to prove proper venue when challenged. Practically, this will:

Encourage defendants to raise Rule 12(b)(3) motions early where the nexus to the chosen forum is attenuated.
Require plaintiffs to marshal venue-specific evidence at the outset (e.g., affidavits tying the defendant’s relevant conduct, decisionmakers, or events to the forum).
Shape district court practice: in paper-only determinations, plaintiffs must make a prima facie showing; if facts are contested or sparse, narrowly tailored discovery may be warranted—but only upon a concrete, detailed proffer.

B. Substantial-part analysis under § 1391(b)(2) is meaningfully demanding

The Sixth Circuit’s application underscores that a plaintiff’s residence, the locus of perceived economic harm, or the place from which a plaintiff communicates with the defendant does not, without more, qualify as “events or omissions giving rise to the claim.” That is especially true for insurance disputes where the underlying tort and the alleged claim-handling conduct are centered elsewhere. Litigants should anticipate that courts will focus on where the operative conduct and decisions happened, not where the plaintiff felt their effects.

C. Strategic considerations for transfer vs. dismissal

By affirming dismissal in light of clear futility in the transferee forum, the opinion signals that district courts in the Sixth Circuit may appropriately consider a merits “peek” when determining the interest of justice under § 1406(a), at least where not contested. Plaintiffs who file in an improper venue risk outright dismissal if the transferee forum’s governing law forecloses their claims. Defendants should be prepared to demonstrate futility in the putative transferee court’s law to resist transfer.

D. Substantive takeaway for insurance bad-faith in Ohio

Although not the centerpiece of the opinion, the substantive law discussion is important for plaintiffs contemplating third-party insurance bad-faith suits connected to Ohio: absent a judgment against the insured tortfeasor, such a claim cannot proceed under Ohio law. Attempts to apply another state’s claims-settlement statute (e.g., Kentucky’s UCSPA) may fail under Ohio’s choice-of-law analysis where the insured risk, policy issuance, and tort occurred in Ohio.

Complex Concepts Simplified

Venue vs. personal jurisdiction: Venue is the statutorily defined place where a lawsuit may be brought; personal jurisdiction is the court’s power over the defendant. Both protect defendants and are “personal” defenses, and both can be waived.
Rule 12(b)(3) improper venue: A procedural motion seeking dismissal because the plaintiff filed in a district that does not satisfy § 1391.
Plaintiff’s burden—preponderance and prima facie: Ultimately, the plaintiff must prove proper venue by a preponderance of the evidence. When the court decides the motion based on pleadings and affidavits, a prima facie showing suffices at that stage—supported by specific facts and, ideally, sworn statements.
“Substantial part of the events or omissions” (§ 1391(b)(2)): Not about where effects are felt or where the plaintiff resides; it focuses on where significant components of the defendant’s allegedly wrongful conduct and the underlying operative events occurred.
Dilatory vs. substantive affirmative defenses: Substantive affirmative defenses (like statute of limitations) can defeat claims on the merits and are generally borne by defendants. Dilatory defenses (like venue and personal jurisdiction) address forum appropriateness and often require the plaintiff to demonstrate the court’s authority.
§ 1406(a) transfer in the “interest of justice”: When venue is improper, a court may transfer or dismiss. Courts can consider whether the case would be futile in the transferee forum—a limited “peek at the merits”—in deciding if transfer serves justice.
Restatement (Second) “most significant relationship”: A choice-of-law methodology directing courts to apply the law of the state most connected to the parties and the occurrence—often the place of injury and where the policy was issued for insurance disputes.

Practical Guidance

For Plaintiffs

Anticipate a venue challenge. Include, or be ready to promptly submit, affidavits tying the defendant’s relevant conduct and decisions to the chosen district (e.g., where adjusters worked, where the claim decision was made, where inspections occurred).
Do not rely on residence, communications from home, or economic effects to carry venue under § 1391(b)(2). These are generally insufficient standing alone.
Consider all statutory bases for venue up front. If § 1391(b)(2) is weak, evaluate § 1391(b)(1) via entity “residence” under § 1391(c)(2), which turns on personal jurisdiction “with respect to the action.”
If seeking venue discovery, be specific. Identify targeted topics (e.g., “the physical location of claim handlers who reviewed file X between dates Y–Z”) and explain how the information would establish venue.
If venue is uncertain, weigh filing in the clearly proper forum to avoid dismissal and potential preclusion issues if the case is not transferred.

For Defendants

Move early under Rule 12(b)(3) when the plaintiff’s chosen venue appears attenuated, and frame the motion with concrete facts showing where the operative events occurred.
Oppose conclusory venue allegations and non-specific discovery requests; insist on particularized proffers.
When transfer is requested as an alternative, demonstrate why transfer would not be in the interest of justice (e.g., because claims would fail under the transferee forum’s applicable law).
Highlight the plaintiff’s failure to invoke alternative venue bases (such as § 1391(b)(1) through § 1391(c)(2)), where applicable.

Conclusion

Tobien v. Nationwide delivers an authoritative and practical roadmap on federal venue in the Sixth Circuit. The court squarely holds that plaintiffs bear the burden to prove venue on a Rule 12(b)(3) challenge and clarifies that a plaintiff’s residence, communications from home, or the locus of economic effects are not, without more, a “substantial part of the events or omissions giving rise to the claim” under § 1391(b)(2). It aligns venue procedure with familiar personal-jurisdiction practice (prima facie showings on a paper record, targeted discovery where justified), and it affirms that district courts may dismiss rather than transfer where a considered look at the transferee forum’s law shows the claims would fail.

The decision’s significance is twofold: it resolves a doctrinal split within the Sixth Circuit on burden allocation for venue challenges and it offers concrete, defendant-protective guidance on how “substantial part” is assessed for claims like insurance bad-faith disputes. Going forward, plaintiffs will need to plead and prove venue with greater factual precision at the outset, and defendants have a clearer pathway to contest tenuous forum choices. In short, Tobien recalibrates venue practice in the Sixth Circuit toward text, structure, and fairness to defendants—while promoting efficient, merits-conscious forum administration under § 1406(a).