UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

________________________________________________ | | DONALD D. CARSTENS, | Case No. 1:09-cv-664 | Plaintiff, | | HONORABLE PAUL L. MALONEY v. | | MICHIGAN DEPARTMENT OF TREASURY and | PENSION BENEFIT GUARANTY CORPORATION, | | Defendants. | |

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OPINION and ORDER Granting the Defendant’s Motion for Transfer of Venue; Terminating and Closing the Case
According to plaintiff Donald D. Carstens (“Carstens”), a Michigan corporation called Union Steel Products, Inc. (“Union Steel”) establishe d the Union Steel Products, Inc., Union Employees Pension Plan (“the plan”) in 1971, and in 1987 th e plan purchases a single-premium group annuity contract from Principal Mutual Life Insuran ce Company (“Principal Mutual”) for the purpose of providing retirement payments to plan participants. See Complaint filed June 16, 2009 in the Circuit Court of Ingham County, Michigan (“Comp”) ¶¶ 1 and 8-9. Defendant Pension Benefit Guaranty Corpor ation (“PBGC”) is a federal agency and federally-owned corporation which administers the defined-benefit pension plan termination insurance program under Title IV of the Empl oyee Retirement Income Security Act of 1974, 29 U.S.C. § 1301 et seq. , as amended (“ERISA”). When an underfunded pension plan covered by-2- ERISA Title IV terminat es, the PBGC generally becomes the plan’s trustee and pays the plan’s unfunded benefits with its insurance funds. See 29 U.S.C. § 1322 and 29 C.F.R. § 4044.3(a). Pursuant to a written agreement between the PBGC and the Union Steel Plan, the Plan terminated on December 31, 1995 and the PBGC became its statutory trustee in September 1999. See Comp ¶ 10 and Ex A (Agreement for Appointment of Trustee & Termination of Plan); accord MTD at 2. Principal Mutual became a publicly-held comp any in October 2001, and in conjunction with that change, compensation in the form of 5,985 shar es of stock in, was credited to the plan (“the Compensation”). See Comp 11 and Ex C. Again according to Carstens, in October 2004 defendant PBGC executed a document releasing him, Union Steel, and other parties from any and all claims it had or may have with regard to the plan. See Comp ¶ 12 and Ex B. On an unspecified date, the Compensation ( 5,985 shares in the Principal Financial Group) escheated to the State of Michigan as unclaimed property. See Comp ¶ 13; accord MTD at 2. As trustee of the plan, the PBGC ha s asserted a claim to the Compen sation, but Carstens contends that the Compensation should be paid to him as the so le remaining shareholder of Union Steel, which was dissolved at an unspecified time prior to the filing of this action. See Comp ¶¶ 14-15. Carstens brought this action in Michigan state court on June 16, 2009. PBGC was served on June 22 and timely filed a notice of removal to this court on July 20, 2009 pursuant to 28 U.S.C. § 1441, attaching a letter wherein co-defendant State of Michigan gives its consent to the removal. See Notice of Removal Ex 1 (complaint), Ex 2 (summons). The removal was authorized by 29 U.S.C. § 1303(f)(7). See Koken v. PBGC , 383 F. Supp.2d 712, 717 (E.D. Pa.) (Robreno, J.), recon. denied , 381 F. Supp.2d 437 (E.D. Pa. 2005).1 W.D. M ICH
. LC IV R 7.2(a) lists motions are considered dispositive, and the only type of motion to dismiss listed is a motion to dismiss for failure to state a claim on which relief can be granted. W.D. M ICH
. LC IV R 7.3(a) provides that any motion not listed in Rule 7.2 is nondispositive. Therefore, the motion to dismiss w ithout prejudice for lack of venue is non-dispositive. Under these local rules, the motion to transf er venue is also a nondispositive motion. Other courts have reached this conclusion wit hout reference to comparable rules. Accord Consolidated Coal Co. v. Marion Docks, Inc. , 2009 WL 2031774, *2 n.1 ( W.D. Pa. July 10, 2009) (McVerry, J.) (“[A] motion to transfer venue is not a dispositive motion . . . .”); Benjamin v. Exxon Mobil Corp. , 2009 WL 1918370, *2 ( D.V.I. July 2, 2009) (same); Siteworks Solutions, LLC v. Oracle Corp. , 2008 WL 4415075, *1 n.1 ( W.D. Tenn. Sept. 22, 2008) (Pham, M.J.) (citing, i.a. , Cain v. MDOC , 2007 WL 1647883 ( E.D. Mich. June 5, 2007)); Cf. Harris v. Edward Hyman Co. , 664 F.2d 943, 945 n.7 ( 5 th Cir. 1981) (acknowledging that motion to remand case to state court could be refe rred by district judge to magistrate judge under 28 U.S.C. § 636(b)(1)(A), which authorizes outright ruling on nondispositive matters, rather than 28 U.S.C. § 636(b)(1)(B), which authorizes re ports and recommendations on dispositive matters). -3- On Tuesday, July 28, 2009, the PBGC filed a F ED
. R. C IV
. P. 12(b)(3) motion to dismiss the complaint without prejudice for lack of venue or, in the alternative, to transfer the case to a district where proper venue exists. After being served with these non-dispositive motions, 1 Carsten had 14 days to file a response. See W.D. M ICH
. LC IV R 7.3(c). The period began on Wednesday, July 28, the day after the PBGC electronically filed the motion. See F ED
. R. C IV
. P. 6 (when calculating a time period, it does not start until the day after the event which triggers the right or duty). The fourteenth day was Tuesday, August 11, so Carste ns had to e-file any opposition by midnight on that date. See F ED
. R. C IV
. P. 6 (when calculating a period longer than ten days, court includes weekends and federal holidays). Carstens did not file an opposition brief by the deadline, nor has he sought an extension of time. Accordingly, the court proceeds to consider the PBGC’s motions without waiting further for an untimely response from Carstens. When an ERISA plan is adversely affected by the PBGC’s actions, title 29 U.S.C. § 1303(f)-4- authorizes an employer or contributing sponsor to bring a civil action against the PBGC for appropriate equitable relief. See A-T-O, Inc. v. Pension Ben. Guar. Corp. , 634 F.2d 1013, 1020 n.10 (6 th Cir. 1980) (citing 29 U.S.C. § 1303(f) ). Title 29 U.S.C. § 1303(f)(1) then provides that it “shall be the exclusive means for bringing acti ons against [the PBGC] under this title, including actions against [the PBGC] in its capacity as a trustee under [29 U.S.C. § 1342 or 29 U.S.C. § 1349].” See Ass’n of Flight Attendant s, CWA, AFL-CIO v. PBGC , 372 F. Supp.2d 91, 97 (D.D.C. 2005). Venue for an action brought pursuant to 29 U.S. C. § 1303(f), such as this one, lies only in these three federal judicial districts: (1) the di strict where plan-termination proceedings are pending, or (2) the district where the pl an has its principal office, or (3) the District of Columbia. See 29 U.S.C. § 1303(f)(2). There are no plan-terminati on proceedings pending with regard to the Union Steel Plan, because termination occurred in 1995 and the PBGC became statutory trustee of the Plan in 1999, so the first venue option is not available. The second venue option is not available either, because the plan was long ago terminated and no longer has a “principal office.” “Defendants argue, and the Court agrees, that where there are no current proceedings under §§ 1341 or 1342, and the plan’s princi pal office has closed, the statute compels venue in the District of Columbia.” United Steel, Paper, Forestry, Rubber, Mf g., Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO-CLC v. Pension Ben. Guar. Corp. , 602 F. Supp.2d 1115, 1119 (D. Minn. 2009) (James Rosenbaum, J.); see also Stephens v. US Airways Group , No. 4:2000-cv-144, slip op. at 4 (N.D. Ohio June 28, 2007) (Dan Polster, J.) (not in F. Supp.2d or on WestLaw) (same).

The court has discretion to dismiss Carstens’ action without prejudice for lack of venue, or-5- to transfer it to a federal district where he could have brought the action. See Kerobo v. Southwestern Clean Fuels Corp. , 285 F.3d 531, 533 (6 th Cir. 2002) (“We review for abuse of discretion a district court’s decision whether to di smiss or transfer a complaint for improper venue.”) (citing First of Michigan Corp. v. Bramlet , 141 F.3d 260, 262 (6 th Cir. 1998)); see, e.g., Miles v. WTMX Radio , 15 F. App’x 213 (6 th Cir. 2001) (Martin, Nelson, S.D. Ohio D.J. Rice) (district court did not abuse discretion by dismiss complaint w ithout prejudice for lack of venue rather than transferring case to a proper venue). “Generally, transfer is favored over a dismissa l because a transfer facilitates the adjudication of a dispute on the merits.” LGT Enters., LLC v. Hoffman , 614 F. Supp.2d 825, 842 (W.D. Mich. 2009) (Paul L. Maloney, C.J.) (citing Roberts v. Paulin , 2007 WL 3203969, *7 (E.D. Mich. Oct. 31, 2007) (citing Goldlawr, Inc. v. Heiman , 369 U.S. 463, 466-67 (1962))). “Unless there is evidence that the plaintiff brought the case in this district [in the absence of pers onal jurisdiction or venue] in bad faith or to harass the defendant, the interest of justice generally requires a transfer rather than dismissal.” LGT , 614 F. Supp.2d at 842 (citing Roberts , 2007 WL 3203969 at *7 (citation omitted)). The court determines that the most efficient and just course of action is to transfer this action to the United States District Court for the District of Columbia.-6- ORDER Defendants’ motion to dismiss without prejudice due to improper venue, or in the alternative for transfer of venue [#5] is GRANTED in part & DENIED without prejudice as moot in part. Pursuant to 28 U.S.C. § 1406(a) and 28 U.S.C. § 1631, this case is TRANSFERRED to the United States District Court for the District of Columbia. This is not a final order. “It is settled that an or der granting a transfer or denying a transfer is interlocutory and not appealable.” Dearth v. Mukasey , 516 F.3d 413, 416 (6 th Cir. 2008) (Suhrheinrich, Rogers , Chief D.J. Bell) (citing Lemon v. Druffel , 253 F.2d 680, 683 (6 th Cir. 1958)). IT IS SO ORDERED on this 18 th day of August 2009.

/s/ Paul L. Maloney Honorable Paul L. Maloney Chief United States District Judge