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.