United States District Court, W.D. Wisconsin
MIKIEA L. PRICE, Plaintiff,
ADAM AUTO SALES, Defendant.
D. PETERSON District Judge
plaintiff Mikiea Price contends that defendant Adam Auto
Sales sold her a defective car. Dkt. 1 and Dkt. 6. The issue
before me is where this case should be litigated. Price lives
in the Western District of Wisconsin, but Adam Auto Sales is
a citizen of Illinois. Adam Auto Sales moves to dismiss the
case or to transfer it to the Northern District of Illinois.
Dkt. 17. It contends that venue in the Western District of
Wisconsin is improper under 28 U.S.C. § 1391(b). It also
moves to strike Price's sur-reply filed in opposition to
the motion to dismiss. Dkt. 21. I will grant Adam Auto
Sales' motion to dismiss or transfer and deny its motion
to strike as moot. But I will not dismiss Price's claim.
Instead, I will transfer it to the Northern District of
motion to dismiss for improper venue, I consider the
allegations in the complaint and evidence submitted with the
motion. See Faulkenberg v. CB Tax Franchise Sys.,
LP, 637 F.3d 801, 809-10 (7th Cir. 2011). I will
accept as true the allegations in the complaint unless they
are contradicted by evidence. See Id. I will resolve
all factual disputes and draw all reasonable inferences in
Price's favor. Id. at 806. The following
allegations are undisputed.
is a citizen of Wisconsin. Adam Auto Sales is a citizen of
Illinois operating in Chicago. In 2015, Price bought a used
car from Adam Auto Sales. As she drove the car back to
Madison, Wisconsin, the check engine light came on. She took
the car to a dealer who told her that there were problems
with the car. She then drove the car back to Adam Auto Sales
for repair. Adam Auto Sales claimed to have fixed the car,
but when Price took it back to the dealer, she learned that
it still was not fixed.
court has jurisdiction over the case under 28 U.S.C. §
1332 based on diversity of citizenship and the amount in
Motion to dismiss or transfer
Auto Sales contends that venue is improper in the Western
District of Wisconsin, and so it has moved to dismiss or
transfer the case to the Northern District of Illinois where,
it argues, the case is properly venued. A civil action is
properly venued in
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located; (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) if there is no
district in which an action may otherwise be brought as
provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action.
28 U.S.C. § 1391(b). First, I note that venue is proper
in the Northern District of Illinois because Adam Auto Sales
resides in that district. But venue may be proper in more
than one district, 14D Charles Alan Wright et al.,
Federal Practice and Procedure § 3806 (2013
ed.), so next I must determine whether venue is proper in the
Western District of Wisconsin.
backwards, subparagraph (3) of § 1391(b) does not allow
for venue in the Western District of Wisconsin, as venue
would be proper in the Northern District of Illinois, because
Adam Auto Sales resides in that district. Nor does
subparagraph (2) allow for venue in the Western District.
When determining where a substantial part of the events or
omissions giving rise to the claim occurred, courts in this
circuit usually “focus on the activities of the
defendant and not those of the plaintiff.” PKWare,
Inc. v. Meade, 79 F.Supp.2d 1007, 1016 (E.D. Wis. 2000);
see also Burke, Warren, Mackeay & Serritella, P.C. v.
Tamposi, No. 10-cv-8267, 2011 WL 5373981, at *6 (N.D.
Ill. Nov. 4, 2011) (“Generally, courts in this circuit,
as well as sister circuits, focus on the activities of the
defendant, not the plaintiff, in making venue decisions under
§ 1391(b)(2).”). Here, Price does not allege that
Adam Auto Sales did anything in Wisconsin: it sold the car to
her in Chicago, and it fixed (or claimed to fix) the car in
Chicago. So no substantial part of the underlying events
occured in the Western District of Wisconsin. Although the
location of “a substantial part of property that is the
subject of the action” can allow for venue, the car is
not the subject of this action-that is, the issue is
not who owns the car, but rather whether Price can recover
monetary damages for events concerning the car. Cf.
Vasarhelyi v. Rojas, No. 09-cv-6256, 2010 WL 737589, at
*4 (N.D. Ill. 2010) (concluding venue was proper in the
Northern District of Illinois when “[t]he sole purpose
of th[e] case is to resolve ownership” of real property
located in the district”); Strasen v. Strasen,
897 F.Supp. 1179, 1187-88 (E.D. Wis. 1995) (concluding that
venue was proper in the Eastern District of Wisconsin when
one of the causes of action was for the recovery of property
under the jurisdictional supervision of a Wisconsin circuit
court in the district).
subparagraph (1) does not allow for venue in the Western
District of Wisconsin, either, because Adam Auto Sales does
not reside here. Under § 1391(c)(2) and (d), a
corporation like Adam Auto Sales resides in any district
“within which its contacts would be sufficient to
subject it to personal jurisdiction.” Here, venue would
be proper in the Western District of Wisconsin if Adam Auto
Sales' contacts with the Western District “directly
relate to the challenged conduct or transaction, ”
i.e., specific personal jurisdiction, Tamburo v.
Dworkin, 601 F.3d 693, 702 (7th Cir. 2010); or if Adam
Auto Sales is “essentially at home” in the
Western District, i.e., general personal jurisdiction,
see, e.g., Abelesz v. OTP Bank, 692 F.3d
638, 654 (7th Cir. 2012). Price has not alleged facts showing
that this court has specific or general jurisdiction over
Adam Auto Sales. Adam Auto Sales, a business operating in
Chicago, Illinois, is clearly not “at home” in
the Western District of Wisconsin. And Adam Auto Sales'
alleged contact with the Western District (its sale to Price)
is not significant enough to establish specific personal
jurisdiction: Price alleges no facts showing that Adam Auto
Sales “purposefully avail[ed] itself of the privilege
of doing business” within the Western District.
Logan Prods., Inc. v. Optibase, Inc., 103 F.3d 49,
52 (7th Cir. 1996).
next question is whether I should dismiss this case for
improper venue or transfer it. Section 1406(a) provides that
when venue is improper, the district court “shall
dismiss, or if it be in the interest of justice, transfer
such case to any district or division in which it could have
been brought.” I have “broad discretion to grant
or deny a motion to transfer the case” under §
1406(a). Coté v. Wadel, 796 F.2d 981, 985
(7th Cir. 1986). As explained above, Price's claim could
have been brought in the Northern ...