Chenier v. Hoopes

John Z. Lee

Name of Assigned Judge or Magistrate Judge John Z. Lee

Plaintiff's motion to transfer the case [18] is granted. Defendants' motions to dismiss [9, 15, 16] are stricken without prejudice. This case is transferred forthwith to the United States District Court for the Southern District of Iowa pursuant to 28 U.S.C. § 1406(a). Civil case terminated. [×] [ For further details see text below.] Docketing to mail notices.

In this case, Plaintiff Nicholas Chenier asserts claims of battery, premises liability and negligent employment against defendants James Hoopes, B&J Management and The Pi Kappa Alpha Corporation. The claims arise out of an alleged assault by Hoopes that took place at the Pi Kappa Alpha fraternity house at Drake University in Des Moines, Iowa. Defendant The Pi Kappa Alpha Corporation moved to dismiss the case on October 10, 2012, pursuant to Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction); Fed. R. Civ. P. 12(b)(3) (improper venue); and Fed. R. Civ. P. 12(b)(6) (failure to state a claim). [9] This Court ordered Plaintiff to respond to the motion to dismiss by October 31, 2012. [11] Defendants Hoopes and B&J Management subsequently joined in the first motion to dismiss and filed dismissal motions of their own. [15, 16] Given these additional filings, this Court extended the time for Plaintiff to respond to all of the Defendants' motions through November 13, 2012. [16] Despite this order, however, Plaintiff failed to file its opposition to any of the motions or seek an extension of time to do so. Instead, Plaintiff now moves this Court to transfer the case to the Southern District of Iowa [18], a course of action that is opposed by Defendant the Pi Kappa Alpha Corporation, which contends that the matter should be dismissed, not transferred. [21] With respect to motions to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(3), the plaintiff has the burden of making a prima facie showing that venue is indeed proper. See Int'l Travelers Cheque Co. v. BankAmerica Corp., 660 F.2d 215, 222 (7th Cir. 1981); Sanderson v. Spectrum Labs, Inc., No. 00-1872, 2000 WL 1909678, at *3 (7th Cir. Dec. 29, 2000). Courts must take allegations in the complaint as true when deciding a Rule 12(b)(3) motion, unless allegations are contradicted by affidavit, must draw all reasonable inferences in favor of the plaintiff, see Nagel v. ADM Investor Servs., Inc., 995 F. Supp. 837, 843 (N.D. Ill. 1998), and must decide any factual disputes in the plaintiff's favor. See Nelson v. Park Indus., Inc., 717 F.2d 1120, 1123 (7th Cir. 1983). If a Court finds that venue is improper, it has the option of dismissing the case in its entirety, or, "in the interest of justice," transferring the case "to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).

28 U.S.C. § 1391(b) provides that a civil action may be brought in: