The Clean Water Act (CWA); 33 USC §§ 1341 & 1344 (CWA §§ 404 & 401); Pipeline permits; Whether issuance of the water quality certification violated the Administrative Procedure Act (APA); Requirement that the “least environmentally damaging practicable alternative” (LEDPA) trenching methods be used in constructing the pipeline; 40 CFR § 230.10(a)(3); Post-issuance mitigation; Cumulative effects

The court denied petitioners-Appalachian Voices and Sierra Club’s petition for review of respondent-Army Corps of Engineers’ (the Corps) decision to issue a permit to intervenor-respondent-Tennessee Gas Pipeline Company (TGP) pursuant to CWA § 404 for a proposed natural gas pipeline. It rejected petitioners’ argument that the Corps acted arbitrarily and capriciously in violation of the APA. Petitioners alleged that the Corps failed to comply with federal law in issuing the permit, which allows “TGP to discharge certain materials in bodies of water while constructing and operating the Pipeline.” The Pipeline’s proposed “construction process involved 149 stream crossings and disturbances to two ponds and six wetlands.” Petitioners argued that the Corps did not adhere to the § 404(b)(1) Guidelines’ requirement that TGP use the LEDPA trenching methods when constructing the Pipeline. They asserted that “the Corps erred by not conducting a crossing-by-crossing analysis to determine the LEDPA crossing method at each crossing.” But the court concluded that their “contentions are belied by the record evidence and the Corps’ reasoned explanation.” When dealing with a pipeline involving “special aquatic sites,” the Corps is required by the § 404(b)(1) Guidelines “to presume the availability of practicable alternatives not involving the special aquatic site ‘unless clearly demonstrated otherwise.’" The court held that there was no evidence that the Corps acted “arbitrarily or capriciously in evaluating TGP’s proposed waterbody crossing methods” or abdicated “its duty to select the least environmentally damaging practicable rock-removal method at each crossing along the Pipeline’s path.” The court also noted that “the Corps appended several ‘Special Permit Conditions’ to the § 404 permit it issued to TGP” and that “‘the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts.’” The court held that the “Corps reasonably relied on such post-issuance mitigation procedures in the instant case. By instructing TGP to use the ‘least impactful trenching technique practicable,’ the Corps effectively conditioned its approval of the § 404 permit on the future implementation of the Guidelines’ LEDPA requirement.” In light of the court’s “previous approval of such future implementation schemes,” it found no reason to now “conclude that the Corps’ imposition of such a scheme with regards to rock removal methods violated the APA.” Among other things, it also determined that, given the applicable limited level of review, “the Corps properly provided support for its suspended particulates and turbidity conclusion.” And it rejected petitioners’ cumulative effects argument, concluding that the Corps did “assess cumulative effects in its analysis . . . .”

The Video Privacy Protection Act (VPPA or the Act); Standing; Whether plaintiff established himself as a “consumer” under the Act; § 2710(a)(1); Leave to amend

The court held that the district court properly dismissed plaintiff-Salazar’s claim for damages under the VPPA for failure to state a claim where he failed to establish that he was a “consumer” based on his subscription to an e-newsletter. It concluded “that a person is a ‘consumer’ only when he subscribes to ‘goods or services’ in the nature of ‘video cassette tapes or similar audio visual materials.” Salazar signed up for a newsletter from defendant-Paramount Global, “doing business as 247Sports.com, a website that provides news coverage of college sports.” He claimed that while he was logged on to Facebook, he watched videos on the site. He alleged that Paramount “installed Facebook’s tracking Pixel on 247Sports.com” and that this “enabled Paramount to track and disclose to Facebook Salazar’s 247Sports.com video viewing history, linked to his Facebook ID without” his consent. He then brought this class-action suit under the VPPA. The district court dismissed the suit under Rule 12(b)(6) on the basis that he failed to establish he was a “consumer” under the Act. On appeal, the court first noted that defendant abandoned its challenge to Salazar’s standing to bring his claim, but it considered the issue because it has “an independent obligation to confirm the plaintiff’s standing before exercising” jurisdiction. It concluded that the “district court correctly found that Salazar has standing.” It then turned to whether he had stated a VPPA claim. To be a “consumer” under the Act, he must be “a ‘subscriber of goods or services from a video tape service provider.’” Salazar contended “that the ‘broad statutory phrase “goods or services” plainly includes Paramount’s online newsletter.’” But the court found that “there is an association between the terms ‘goods or services’ and ‘audio visual materials.’ So viewing the provision as a whole reveals ‘a more targeted reading’ than the one Salazar proposes.” It concluded that the “full definition of ‘consumer’ in the statute does not encompass consumers of all ‘goods or services’ imaginable, but only those ‘from a video tape service provider.’” The court noted that two other circuits disagree with this interpretation. Applying its interpretation, it determined that “Salazar did not plausibly allege that the newsletter itself was an ‘audio-visual material.’” It affirmed the district court’s dismissal of the suit and its denial of leave to amend, noting that Salazar requested leave to do so “only in a single cursory footnote at the end of his response to Paramount’s motion to dismiss[,]” and did not explain how an amended complaint would resolve the problems with the first.

Motion to withdraw a plea based on the ineffective assistance of counsel; People v Brown; People v White; Lafler v Cooper; Judicial reassignment; MCR 2.003(C)(1)(e); Code of Judicial Conduct, Canon 2(A); People v Loew

The court held that the trial judge did not err by denying defendant’s motion to withdraw his plea, or by declining to disqualify himself. He pled no contest to charges of assault with intent to commit CSC against the then-15-year-old victim. During his plea hearing, he moved for new counsel, claiming his appointed attorney failed to adequately communicate the terms of the agreement. The trial court granted his motion, new counsel was appointed, and defendant was sentenced pursuant to the plea agreement. The trial court denied his motion to withdraw the plea and correct an invalid sentence. He also unsuccessfully raised an issue of judicial reassignment, based on his claim that the judge represented him in proceedings years earlier. On appeal, the court rejected his argument that the trial court erred by denying his motion to withdraw his plea, holding that: (1) “even after being appointed new counsel, defendant did not move to withdraw his plea,” and only did so after sentencing, and (2) he “explicitly acknowledged during his plea that he understood he was pleading no contest to two charges.” His own statements reflected “that he understood the number of offenses to which he was pleading.” The court also rejected his claim that he was entitled to be resentenced by another judge because the trial judge should have disqualified himself. The judge “allegedly represented defendant at least seven years before presiding over this case. This far exceeds the two-year window under MCR 2.003(C)(1)(e).” Moreover, he did not identify “a reason to believe that any impropriety or the appearance of impropriety existed.” The judge “stated on the record that he did not recall any details from his prior representation of defendant, and that he was not biased personally against defendant in any way. Because an ordinary person could not ‘reasonably question the judge’s integrity, impartiality, or competence on the basis of [his] observable conduct[,]’” this prior representation “did not create the appearance of impropriety in this case under Canon 2(A).” Affirmed.

Jury instructions on conspiracy to unlawfully distribute controlled substances; 21 USC §§ 846 & 841; Instruction on the correct mens rea; Ruan v United States; United States v Anderson; United States v Bauer; United States v Stanton; Sufficiency of the evidence; Conspiracy to unlawfully distribute; Health-care fraud & conspiracy to commit it; 18 USC §§ 347 & 349; Conspiracy to launder money; § 1956; Expert testimony; Admission of a summary bar graph; Testimony of a DEA investigator; Whether a lay witness impermissibly provided a “qualitative assessment”; Sentencing; Drug quantity calculation; Use of intended loss rather than actual loss; United States v You; The intended loss calculation; Restitution

Although the jury instruction for conspiring to unlawfully distribute controlled substances here did not include a Ruan instruction on a defendant’s subjective knowledge, the court noted it “has consistently held that Ruan is satisfied where the district court provides a deliberate-ignorance instruction like the one here. Those holdings” were binding. It further held that: (1) there was sufficient evidence to support defendants’ convictions and (2) they were not entitled to relief based on their evidentiary, sentencing, and restitution issues. Defendant-Campbell, a doctor, owned a primary-care facility and defendant-Dyer was a nurse practitioner who worked there. A jury convicted both of conspiring to unlawfully distribute controlled substances, health-care fraud and conspiracy to commit it, and money laundering. The court first addressed their claim that when instructing the jury on conspiracy to unlawfully distribute controlled substances, the district court failed to instruct it on the mens rea needed for conviction as set forth in Ruan, i.e., “a defendant unlawfully distributes controlled substances only where he knows that he is ‘acting in an unauthorized manner, or intend[s] to do so.’” The court explained that post-Ruan it has “issued a trio of opinions involving jury instructions nearly identical to those” here – Anderson, Bauer, and Stanton. Those decisions required the court to affirm. As to the sufficiency of the evidence on the conspiracy to unlawfully distribute charge, it rejected their claim that the “government presented insufficient evidence of agreement and participation.” It found that the “government provided sufficient evidence of an agreement between Campbell and Dyer to unlawfully distribute controlled substances, their knowledge and intent to join the conspiracy, and their participation in it.” And it concluded that even “assuming the acquittals on the § 841 counts mean that this court must disregard the patients named in those counts, there was ample evidence to convict Defendants of conspiracy to unlawfully distribute. Although the government’s experts focused their testimony on five named patients, the jury heard about countless other patients who received opioids from Campbell and Dyer.” There was also sufficient evidence to support the health-care fraud and conspiracy convictions. They relied “on a practice called ‘incident-to’ billing, under which a provider can bill using the 99214 code for services provided by ‘mid-level practitioners’ who are not doctors. . . . But the government presented evidence that [their] services would not qualify for incident-to billing.” Their primary argument as to the conspiracy to launder money conviction was that there was insufficient evidence of health-care fraud. Affirmed.

Sex discrimination & retaliation under the Equal Pay Act (EPA) & Title VII of the Civil Rights Act; Whether the verdict form was a “general” form or a “special verdict” form; FedRCivP 49(b)(3); Reconciled verdict; Rule 49(a); Affirmative defense to the discrimination claim; Budget constraints; Supply & demand

The court held that the verdict forms in this employment discrimination/retaliation case were general and not special, and “despite classifying these verdicts differently than the magistrate judge did,” it affirmed the judgment for defendant-county school board. Plaintiff-Debity sued defendant for sex discrimination and retaliation under the EPA and Title VII, claiming that it offered her a lower salary than the male who previously held the job, and when she asked for more, it retaliated by withdrawing the job offer. The jury found that defendant had legitimate reasons for offering Debity less and that it had not retaliated against her. Despite the verdicts, the jury awarded her a little over $195,000. This apparently resulted from a confusing verdict form. The magistrate judge “held that all the questions on the verdict form were special verdicts” and reconciled the verdicts under Rule 49(a) by throwing out the damages award and finding for defendant on all claims. On appeal, the court first considered what kind of verdicts the jury returned. Although the magistrate judge classified them as special verdicts, the court disagreed, concluding that the jury received a general verdict form on the retaliation claims and a general verdict with interrogatories on the discrimination claims. It further held that “the interrogatories for the discrimination claims are inconsistent with the general verdict, but not with each other.” It found that as a result, the discrimination claims fell under Rule 49(b)(3), and that there was no need to remand the case where it was “clear that the magistrate judge would enter judgment based on the answers to Questions 1(a) and 1(b) notwithstanding the general verdict as reflected in Question 3.” And the Federal Rules of Civil Procedure permitted “the magistrate judge’s chosen course (entering judgment based on the interrogatories) under the correct classification[.]” As to the retaliation claim, the court determined that Question 3 and Question 2(a) formed a general verdict that was a consistent one in defendant’s favor. Further, the court upheld the magistrate judge’s denial of plaintiff’s motion for judgment as a matter of law as to whether defendant made a successful affirmative defense to the discrimination claims, concluding “that two reasons in this case—(1) budget constraints and (2) market forces of supply and demand—each provide an independent basis to uphold the jury’s verdict.”

The Clean Water Act (CWA); 33 USC §§ 1341 & 1344 (CWA §§ 404 & 401); Pipeline permits; Whether issuance of the water quality certification violated the Administrative Procedure Act (APA); Requirement that the “least environmentally damaging practicable alternative” (LEDPA) trenching methods be used in constructing the pipeline; 40 CFR § 230.10(a)(3); Post-issuance mitigation; Cumulative effects

The court denied petitioners-Appalachian Voices and Sierra Club’s petition for review of respondent-Army Corps of Engineers’ (the Corps) decision to issue a permit to intervenor-respondent-Tennessee Gas Pipeline Company (TGP) pursuant to CWA § 404 for a proposed natural gas pipeline. It rejected petitioners’ argument that the Corps acted arbitrarily and capriciously in violation of the APA. Petitioners alleged that the Corps failed to comply with federal law in issuing the permit, which allows “TGP to discharge certain materials in bodies of water while constructing and operating the Pipeline.” The Pipeline’s proposed “construction process involved 149 stream crossings and disturbances to two ponds and six wetlands.” Petitioners argued that the Corps did not adhere to the § 404(b)(1) Guidelines’ requirement that TGP use the LEDPA trenching methods when constructing the Pipeline. They asserted that “the Corps erred by not conducting a crossing-by-crossing analysis to determine the LEDPA crossing method at each crossing.” But the court concluded that their “contentions are belied by the record evidence and the Corps’ reasoned explanation.” When dealing with a pipeline involving “special aquatic sites,” the Corps is required by the § 404(b)(1) Guidelines “to presume the availability of practicable alternatives not involving the special aquatic site ‘unless clearly demonstrated otherwise.’" The court held that there was no evidence that the Corps acted “arbitrarily or capriciously in evaluating TGP’s proposed waterbody crossing methods” or abdicated “its duty to select the least environmentally damaging practicable rock-removal method at each crossing along the Pipeline’s path.” The court also noted that “the Corps appended several ‘Special Permit Conditions’ to the § 404 permit it issued to TGP” and that “‘the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts.’” The court held that the “Corps reasonably relied on such post-issuance mitigation procedures in the instant case. By instructing TGP to use the ‘least impactful trenching technique practicable,’ the Corps effectively conditioned its approval of the § 404 permit on the future implementation of the Guidelines’ LEDPA requirement.” In light of the court’s “previous approval of such future implementation schemes,” it found no reason to now “conclude that the Corps’ imposition of such a scheme with regards to rock removal methods violated the APA.” Among other things, it also determined that, given the applicable limited level of review, “the Corps properly provided support for its suspended particulates and turbidity conclusion.” And it rejected petitioners’ cumulative effects argument, concluding that the Corps did “assess cumulative effects in its analysis . . . .”

Reimbursement of personal protection insurance (PIP) benefits; Pre or Post amendment fee schedules; The Department of Insurance & Financial Services’ (DIFS) interpretation of Andary v USAA Cas Ins Co; “Reasonable & customary”

The court found that the circuit court properly held that the other party-DIFS “order—which concluded that post amendment fee schedules applied for dates of service after [7/1/21]—was erroneous and reversed that decision. Appellant-medical provider filed a provider appeal with DIFS claiming it was underpaid for services it provided to appellee-insurer’s insured, who was hurt in a car crash. DIFS found appellant was entitled to additional monies. The trial court reversed, finding DIFS used the wrong reimbursement methodology. The court held that the “circuit court did not err in concluding that the DIFS interpretation of our Supreme Court’s holding in Andary was erroneous.” The Andary Court found that application of the 2019 amendments of MCL 500.3157(7) and (10) to the insureds in that case would result in ‘a retroactive reduction of their vested contractual rights to receive uncapped PIP benefits pursuant to the insurance policies and incorporated statutes that existed when they were injured.’” Further, there “was no clear Legislative intent to apply the amendments retroactively to insureds with vested contractual rights to PIP benefits under the pre-amendment no-fault statutes so those provisions ‘do not apply to any insured who was injured while covered by an insurance policy issued before’” 6/11/19. Thus, “the insurance policies and the no-fault statutes that existed when the insureds in that case were injured controlled their entitlement to PIP benefits, not the amended provisions enacted by 2019 PA 21 and 2019 PA 22.” Here, like in Andary, the insured “suffered injuries in an automobile accident prior to 2019, and was entitled to uncapped lifetime medical care covered by PIP benefits under an insurance policy issued before the accident, consistent with the” no-fault act. Although appellant now agreed that “the pre-amendment payment methodology used for determining the reasonableness of the charges applies to PIP claims arising before the no-fault amendments,” it contended that appellee’s reimbursement for its services was nonetheless insufficient and not “reasonable and customary.” The court found that “DIFS misinterpreted . . . Andary.” It recognized that Andary referenced only MCL 500.3157(7) and (10), but its reasoning and holdings are “equally applicable to this case involving MCL 500.3157(2)(b), (8) and (9), as well as cases under similar circumstances.” Applying the 2019 amendments of MCL 500.3157(2)(b), (8), and (9) to the insured “would constitute a retroactive reduction of her vested contractual rights to receive uncapped PIP benefits under her insurance policy and the no-fault statute as it existed when she was injured.” There was no indication the Legislature intended the amendments of MCL 500.3157 to apply retroactively to individuals who have vested contractual rights to PIP benefits under the pre-amendment no-fault statutes, “which means that these provisions do not apply to any insured who was injured while covered by an insurance policy issued before” 6/11/19. Thus, the insured’s “no-fault insurance policy and the no-fault statute that existed at the time she was injured controls her entitlement to PIP benefits, ‘not the amended provisions enacted by 2019 PA 21 and 2019 PA 22.’” Appellant was entitled to reimbursement for services it provided “under the pre-amendment ‘reasonable and customary’ payment methodology.” Affirmed.

Reimbursement of personal protection insurance (PIP) benefits; Pre or Post amendment fee schedules; The Department of Insurance & Financial Services’ (DIFS) interpretation of Andary v USAA Cas Ins Co; “Reasonable & customary”

The court found that the circuit court properly held that the other party-DIFS “order—which concluded that post amendment fee schedules applied for dates of service after [7/1/21]—was erroneous and reversed that decision. Appellant-medical provider filed a provider appeal with DIFS claiming it was underpaid for services it provided to appellee-insurer’s insured, who was hurt in a car crash. DIFS found appellant was entitled to additional monies. The trial court reversed, finding DIFS used the wrong reimbursement methodology. The court held that the “circuit court did not err in concluding that the DIFS interpretation of our Supreme Court’s holding in Andary was erroneous.” The Andary Court found that application of the 2019 amendments of MCL 500.3157(7) and (10) to the insureds in that case would result in ‘a retroactive reduction of their vested contractual rights to receive uncapped PIP benefits pursuant to the insurance policies and incorporated statutes that existed when they were injured.’” Further, there “was no clear Legislative intent to apply the amendments retroactively to insureds with vested contractual rights to PIP benefits under the pre-amendment no-fault statutes so those provisions ‘do not apply to any insured who was injured while covered by an insurance policy issued before’” 6/11/19. Thus, “the insurance policies and the no-fault statutes that existed when the insureds in that case were injured controlled their entitlement to PIP benefits, not the amended provisions enacted by 2019 PA 21 and 2019 PA 22.” Here, like in Andary, the insured “suffered injuries in an automobile accident prior to 2019, and was entitled to uncapped lifetime medical care covered by PIP benefits under an insurance policy issued before the accident, consistent with the” no-fault act. Although appellant now agreed that “the pre-amendment payment methodology used for determining the reasonableness of the charges applies to PIP claims arising before the no-fault amendments,” it contended that appellee’s reimbursement for its services was nonetheless insufficient and not “reasonable and customary.” The court found that “DIFS misinterpreted . . . Andary.” It recognized that Andary referenced only MCL 500.3157(7) and (10), but its reasoning and holdings are “equally applicable to this case involving MCL 500.3157(2)(b), (8) and (9), as well as cases under similar circumstances.” Applying the 2019 amendments of MCL 500.3157(2)(b), (8), and (9) to the insured “would constitute a retroactive reduction of her vested contractual rights to receive uncapped PIP benefits under her insurance policy and the no-fault statute as it existed when she was injured.” There was no indication the Legislature intended the amendments of MCL 500.3157 to apply retroactively to individuals who have vested contractual rights to PIP benefits under the pre-amendment no-fault statutes, “which means that these provisions do not apply to any insured who was injured while covered by an insurance policy issued before” 6/11/19. Thus, the insured’s “no-fault insurance policy and the no-fault statute that existed at the time she was injured controls her entitlement to PIP benefits, ‘not the amended provisions enacted by 2019 PA 21 and 2019 PA 22.’” Appellant was entitled to reimbursement for services it provided “under the pre-amendment ‘reasonable and customary’ payment methodology.” Affirmed.

“Fraudulent insurance act” under MCL 500.3173a; Distinguishing Candler v Farm Bureau Mut Ins Co of MI & Bakeman v Citizens Ins Co of the Midwest; Intent; Knowledge that a statement contained false information; Materiality; Personal representative (PR)

On remand from the Supreme Court, the court concluded that there was a genuine issue of material fact as to whether one of plaintiff-Estate’s PRs (Lateshea) knew that the answers to defendant-insurer’s (AAA) interrogatories contained false information. Thus, it again reversed summary disposition for AAA and remanded. The Supreme Court reversed the court’s prior decision in the case (Willaimson I) and remanded for the court to address the Estate’s alternative arguments not addressed there, including whether AAA satisfied “the intent and materiality prongs of the” Candler test. The fourth prong “states that, in order to commit a fraudulent insurance act under MCL 500.3173a, ‘the person must have known that the statement contained false information.’” In this case, Lateshea signed the answers to AAA’s interrogatories on the Estate’s behalf. The court found “that, at a minimum, there exists a genuine issue of material fact regarding whether Lateshea knew that her answers to AAA’s interrogatories contained false information.” It noted that the statements at issue “in determining whether the Estate committed a fraudulent insurance act under MCL 500.3173a were the interrogatory answers, which twice stated that Williamson died on [10/24/19]. In addition, although the answers referenced the replacement-services and attendant-care forms,” another individual (B), “rather than Lateshea, signed those forms.” Thus, this case was distinguishable from Candler, where “the plaintiff forged his brother’s signature on replacement-services calendars submitted to the” insurer and from Bakeman, where “the plaintiff signed the attendant-care forms that were submitted to the assigned insurer. In this case, [B] signed the forms indicating the days on which he provided services for Williamson. Considering that Lateshea twice stated in her interrogatory answers that Williamson died on [10/24/19], and that she did not sign the replacement-services and attendant-care forms, there exists a genuine issue of material fact regarding whether she knew that her answers contained false information.” As to the fifth prong, the court rejected the Estate’s assertion that the statements were not material. They “concerned the dates on which [B] rendered attendant-care and replacement services to Williamson, an issue directly relevant to the amount that the Estate claimed was due.”

Sex discrimination & retaliation under the Equal Pay Act (EPA) & Title VII of the Civil Rights Act; Whether the verdict form was a “general” form or a “special verdict” form; FedRCivP 49(b)(3); Reconciled verdict; Rule 49(a); Affirmative defense to the discrimination claim; Budget constraints; Supply & demand

The court held that the verdict forms in this employment discrimination/retaliation case were general and not special, and “despite classifying these verdicts differently than the magistrate judge did,” it affirmed the judgment for defendant-county school board. Plaintiff-Debity sued defendant for sex discrimination and retaliation under the EPA and Title VII, claiming that it offered her a lower salary than the male who previously held the job, and when she asked for more, it retaliated by withdrawing the job offer. The jury found that defendant had legitimate reasons for offering Debity less and that it had not retaliated against her. Despite the verdicts, the jury awarded her a little over $195,000. This apparently resulted from a confusing verdict form. The magistrate judge “held that all the questions on the verdict form were special verdicts” and reconciled the verdicts under Rule 49(a) by throwing out the damages award and finding for defendant on all claims. On appeal, the court first considered what kind of verdicts the jury returned. Although the magistrate judge classified them as special verdicts, the court disagreed, concluding that the jury received a general verdict form on the retaliation claims and a general verdict with interrogatories on the discrimination claims. It further held that “the interrogatories for the discrimination claims are inconsistent with the general verdict, but not with each other.” It found that as a result, the discrimination claims fell under Rule 49(b)(3), and that there was no need to remand the case where it was “clear that the magistrate judge would enter judgment based on the answers to Questions 1(a) and 1(b) notwithstanding the general verdict as reflected in Question 3.” And the Federal Rules of Civil Procedure permitted “the magistrate judge’s chosen course (entering judgment based on the interrogatories) under the correct classification[.]” As to the retaliation claim, the court determined that Question 3 and Question 2(a) formed a general verdict that was a consistent one in defendant’s favor. Further, the court upheld the magistrate judge’s denial of plaintiff’s motion for judgment as a matter of law as to whether defendant made a successful affirmative defense to the discrimination claims, concluding “that two reasons in this case—(1) budget constraints and (2) market forces of supply and demand—each provide an independent basis to uphold the jury’s verdict.”

Venue; 28 USC § 1391(b); FedRCivP 12(b)(3); The burden of proof on an improper venue claim; Freeman v Fallin (D DC); Whether the district court should have transferred the case instead of dismissing it; § 1406(a)

Addressing an issue it had not previously decided, the court held that when a defendant files a Rule 12(b)(3) motion to dismiss for improper venue, plaintiff has the burden of proving by a preponderance of the evidence that venue is proper. The district court here did not err by concluding that the Eastern District of Kentucky was an improper venue for plaintiff-Tobien’s lawsuit against defendant-Nationwide Insurance. Tobien, a salesman, was bitten by a dog while going door to door in Ohio. He filed a personal injury claim against the homeowners in the Southern District of Ohio, which the parties agreed to dismiss. He submitted a claim to the homeowners’ insurer, Nationwide, but it denied the claim. He then sued it in the Eastern District of Kentucky. Nationwide moved to dismiss based on improper venue. The district court granted the motion and dismissed the case rather than transfer it. The court held for the first time in this circuit, that “when a defendant challenges the venue, the plaintiff bears the burden of proving venue by a preponderance of the evidence.” It noted that a plaintiff has the “‘obligation to institute the action in a permissible forum.’” The district court decided the motion on the papers. Tobien had to “to show that his pleadings and affidavits, if accepted as true, would establish that venue was proper.” The court concluded that he did not “make that showing.” Tobien argued that he lives in Kentucky and Nationwide’s correspondence with him took place in Kentucky. But as to the latter claim, he did not “have any factual allegations to support that vague assertion. Nor did he support it by attaching affidavits or other evidence to his opposition.” The court held that his “correspondence with the insurance company from his home in Kentucky, and the general fact that he lives in Kentucky, aren’t ‘events or omissions giving rise to’ his complaint that Nationwide violated the law by denying his claim in bad faith.” It also rejected his claim that “the district court abused its discretion by dismissing his case rather than transferring it to a district where venue would have been proper—like the Southern District of Ohio.” It disagreed with his assertion “that the district court was wrong in deciding that his lawsuit would not succeed” there. Affirmed.