Simon v. Ward, CIV.A. 99-1554.

• Decision Date: 03 January 2000
• Docket Number: No. CIV.A. 99-1554.,CIV.A. 99-1554.
• Citation: 80 F.Supp.2d 464
• Parties: Michael B. SIMON, Plaintiff, v. William F. WARD, Allen Castor, Barbara Descher, Richard Kipp, Gary Lucht, Benjamin Martinez, Nicholas Muller, Sean Ryan, Michael Webster, Conway Bushey, James W. Riggs, and Martin F. Horn, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

80 F.Supp.2d 464

Michael B. SIMON, Plaintiff, v. William F. WARD, Allen Castor, Barbara Descher, Richard Kipp, Gary Lucht, Benjamin Martinez, Nicholas Muller, Sean Ryan, Michael Webster, Conway Bushey, James W. Riggs, and Martin F. Horn, Defendants.

No. CIV.A. 99-1554.

United States District Court, E.D. Pennsylvania.

January 3, 2000.

Clayton A. Sweeney, Jr., Philadelphia, PA, for Plaintiff.

John O. J. Shellenberger, III, Office of Attorney General, Philadelphia, PA, for Defendants.

MEMORANDUM

LOWELL A. REED, Jr., Senior District Judge.

Defendants William F. Ward, Allen Castor, Barbara Descher, Richard Kipp, Gary Lucht, Benjamin Martinez, Nicholas Muller, Sean Ryan, Michael Webster, Conway Bushey, James W. Riggs, and Martin F. Horn (collectively, "defendants") have filed a motion to dismiss this § 1983 action for improper venue pursuant to Fed. R.Civ.P. 12(b)(3). Upon consideration of defendants' motion (Document No. 8), plaintiff's response (Document No. 9), defendants' reply, and the pleadings and evidence submitted therewith, defendants' motion will be denied.

I. BACKGROUND

Plaintiff Michael B. Simon was a prisoner in the custody of the Pennsylvania Department of Corrections. He alleges in his Complaint (filed Mar. 29, 1999) that defendants, who are members and secretaries of the Pennsylvania Board of Probation and Parole ("Parole Board"), and the Commissioner of the Pennsylvania Department of Corrections, failed to credit him for time served, miscalculated his sentence, and refused to grant him a parole hearing, thereby causing him to be incarcerated for a longer period than was appropriate under his sentence. Defendants are sued in their individual capacities only.

Plaintiff filed this action here, in the Eastern District of Pennsylvania. Defendants claim that venue is improper under the general venue statute, 28 U.S.C. § 1391, and that the action should be dismissed or transferred to the Middle District of Pennsylvania pursuant to 28 U.S.C. §§ 1404 or 1406. Plaintiff argues that at least one of the defendants resides in the Eastern District of Pennsylvania, and that venue is therefore proper in this district.

II. ANALYSIS

On a motion such as this one, in which the evidentiary record is particularly sparse, the most significant decision a court can make is to identify the party that bears the burden of proof. Strangely, neither plaintiff nor defendant addresses this question directly. Thus, as a threshold matter, I endeavor to determine which party bears the burden of proof on a motion to dismiss for improper venue under Rule 12(b)(3).

This proves no simple task, as there is some confusion on this question among district courts in this circuit. A number of district court cases, relying on Lieb v. American Pacific Int'l, Inc., 489 F.Supp. 690, 696 (E.D.Pa.1980), hold that plaintiff bears the burden of proving that venue is proper. See Rotondo Weirich Enter., Inc. v. Global Employment Solutions, Inc., 1999 WL 1077078 at 5 (E.D.Pa.Nov. 29, 1999) ("[T]he Court's decision today does not relieve Plaintiff of the burden of proving those facts necessary to support personal jurisdiction and venue by a preponderance of the evidence ..."); Britamco Underwriters, Inc. v. Raymond E. Wallace Special Productions, Inc., 56 F.Supp.2d 542, 545 (E.D.Pa.1999) ("when venue is attacked, it is the plaintiff who bears the burden of showing proper venue"); Nowicki v. United Timber Co., 1999 WL 619648 at 1 (E.D.Pa. Aug. 12, 1999) ("The plaintiffs have met their burden of demonstrating that venue is proper in the Eastern District of Pennsylvania."); Freedman v. Anderson Group, Inc., 1996 WL 548141 at 2 (E.D.Pa.Sept. 23, 1996) ("Once a defendant properly raises a jurisdictional defense ... the plaintiff bears the burden of demonstrating that venue was properly laid in this district."); Gaskin v. Commonwealth of Pennsylvania, 1995 WL 154801 at 1 (E.D.Pa. Mar. 28, 1995) ("Plaintiffs have the burden of proving that their choice of venue is proper.").

Another flock of cases, relying on Myers v. American Dental Ass'n, 695 F.2d 716 (3d Cir.1982), cert. denied, 462 U.S. 1106, 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983), declare that defendant bears the burden of showing that venue is improper. See Superior Precast, Inc. v. Safeco Ins. Co. of America, 71 F.Supp.2d 438, 442 (E.D.Pa. 1999) ("Contrary to Safeco's suggestion, as the defendant, it bears the burden of proving its affirmative defense and showing that venue is improper on a motion to dismiss."); Nazareth Nat'l Bank & Trust Co. v. E.A. International Trust, 1999 WL 549036 at 3 (E.D.Pa. July 26, 1999) ("In any event, the burden is on the defendants to demonstrate that venue is improper and they clearly have not done so."); Mizrahi v. Great-West Life Assurance Co., 1999 WL 398714 at 2 (E.D. Pa. June 17, 1999) ("The burden is on the movant to demonstrate that venue is improper."); Bowdoin v. Oriel, 1999 WL 391486 at 4 (E.D.Pa. May 5, 1999) ("[W]e find that defendant has not met his burden of proving that venue is improper in the Eastern District of Pennsylvania.").¹

The Court of Appeals for the Third Circuit appears to have spoken only once on this matter in the last 20 years, in Myers v. American Dental Association. In that case, the court characterized a motion to dismiss for improper venue under Rule 12(b)(3) as an "affirmative dilatory defense," not an attack on jurisdiction,² and held that the movant (the defendant) bears the burden of demonstrating that venue is improper. See Myers, 695 F.2d at 716. The majority ascribed prior decisions that placed the burden of showing venue on plaintiff to a misguided meshing of venue and jurisdiction analyses.³ However, the dissent argued that venue, like jurisdiction is a "dilatory," not "exculpatory," defense that "touch[es] only the court's legal authority to entertain the complaint." Myers, 695 F.2d at 732-33 (Garth, J., concurring and dissenting). Because such dilatory defenses do not go to the merits of the case, the dissent continued, plaintiff has the burden of proving the court should hear the case.⁴

The controversy over which party bears the burden of establishing venue rages outside the Third Circuit, as well. Two distinguished resources on federal practice differ over the question. In Moore's Federal Practice, at § 110.01[5][c] (3d ed.1999), Professor Moore states that the "correct" view is that defendants have the burden of showing that venue is improper. Professors Wright and Miller suggest that the "better view, and the clear weight of authority" is that in venue, as in jurisdiction, plaintiff should bear the burden. See 15 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 3826 (2d ed.1986).

Policy arguments weigh in on both sides of the debate. Placing the burden of establishing venue on plaintiff is consistent with the jurisdictional notion that plaintiff must make a threshold showing that the case belongs in the particular court in which the suit is brought. See Myers, 695 F.2d at 732-33.⁵ On the other hand, placing the burden on defendant seems proper, as venue rules are rules of convenience for defendants, and defendant therefore has a responsibility of asserting its privilege. See Moore's Federal Practice, at § 110.01[5][c].

Ultimately, I believe that the argument in favor of defendant bearing the burden carries the day. Venue is not the identical (or even fraternal) twin of jurisdiction; rather it is an affirmative defense and a privilege held by defendants, which exists for the benefit of defendants. See VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d, 1574, 1576 (Fed.Cir. 1990). Venue must be raised by defendant and may be waived by defendant. Therefore, I see no reason why defendant should not be required make an evidentiary showing that venue is improper to reap the benefits of dismissal or transfer.⁶

Regardless, this Court is bound by the rule set forth by the Court of Appeals in Myers: defendant bears the burden of establishing that venue is improper.⁷ Therefore, Lieb, 489 F.Supp. 690, and its progeny, which place the burden on plaintiff, are no longer valid in this circuit. With the burden resting squarely on the shoulders of defendants in this case, I turn to the parties' arguments and evidence.

A. Improper Venue Under Rule 12(b)(3)

Venue in this non-diversity action is governed by 28 U.S.C. § 1391(b), under which venue is proper "in a judicial district where any defendant resides, if all defendants reside in the same State."⁸ All defendants appear to reside in the Commonwealth of Pennsylvania, and therefore, to show that venue is improper, defendants must demonstrate that none of them resides in the Eastern District of Pennsylvania under § 1391(b)(1).⁹

Defendants contend that venue is improper under 28 U.S.C. § 1391(b)(1), because none of the defendants "officially" reside in the Eastern District of Pennsylvania. Their argument is based on a line of cases that regards the residence of federal or state officials sued in their official capacities, for the purpose of determining venue, as the state capitol or the place where they perform their duties. See Tirado v. Stepanik, No. 95-1103, 1997 WL 337141 at 1 (E.D.Pa. May 27, 1997) (residence of state official for venue purposes "shall be determined by an inquiry into where they performed their official duties"); Taylor v. White, 132 F.R.D. 636 (E.D.Pa.1990) (state officials can be sued where they maintain their offices, either in the state capitol or in district where regional offices are located in which substantial activities related to the claims took place); Hospital Ambulance Service, Inc. v. Larson, 1986 WL 506 at 2 (E.D.Pa. Dec. 16, 1986) (when determining venue, residence of state officials is the state capitol); Betz v. Knepper, 1986 WL 5715 at 2 (E.D.Pa. May 14, 1986); Continental Vintners v. Pennsylvania Liquor Control Bd., 1986 WL 4822 at 1 (E.D.Pa. Apr. 17, 1986) (same); Leonhart v....