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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ADAM LOPICCOLO, :

 :

Plaintiff, : CIVIL ACTION

 :

 v. : NO. 10-CV-3131

:

AMERICAN UNIVERSITY, et al., :

 :

Defendants. :

MEMORANDUM AND ORDER

Joyner, J. March 29, 2011

Before this Court are the Motion to Dismiss Plaintiff’s

Amended Complaint Pursuant to Rule 12(b)(2), (3), and (6) of

Defendants American University, the Board of Trustees of American

University, and Robert Acunto (Doc. No. 9), Plaintiff’s response

in opposition thereto (Docs. Nos. 15, 17), and the Defendants’

reply in further support thereof (Doc. No. 20), as well as

Defendant Mark Cody’s Motion to Dismiss Plaintiff’s Amended

Complaint for Lack of Jurisdiction, Improper Venue and for

Failing to State a Claim for Which Relief Can Be Granted (Doc.

No. 10), Plaintiff’s response in opposition thereto (Docs. Nos.

16, 18), and Defendant Cody’s reply in further support thereof

(Doc. No. 19). For the reasons set forth in this Memorandum, the

Court denies the Motions to Dismiss but, finding venue improper

in the Eastern District of Pennsylvania, transfers the case to

the United States District Court for the District of Columbia.
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I. Background

Plaintiff Adam LoPiccolo was a college wrestler let go from

his team in the middle of his third year at American University,

allegedly in violation of an athletic scholarship agreement. 

Plaintiff thereafter brought this diversity action against

Defendants American University, the Board of Trustees of American

University, athletic director Robert Acunto, and men’s wrestling

coach Mark Cody for (1) breach of contract, (2) breach of the

duty of good faith and fair dealing, (3) fraud in the inducement,

(4) intentional infliction of emotional distress, and (5)

negligent infliction of emotional distress. All defendants moved

to dismiss for lack of personal jurisdiction, improper venue, and

failure to state a claim; Defendant Cody also moved to dismiss

for lack of subject matter jurisdiction.

II. Discussion

A. Subject matter jurisdiction

A federal court has subject matter jurisdiction over state

law claims when there is complete diversity of citizenship and

the amount in controversy exceeds $75,000. 28 U.S.C. 1332(a)

(2006). To dismiss for failure to meet the amount in controversy

requirement, it “must appear to a legal certainty that the claim

is really for less than the jurisdictional amount.” St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); see

also Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir. 1997)
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(“[W]hether a plaintiff’s claims pass the ‘legal certainty’

standard . . . should involve the court in only minimal scrutiny

of the plaintiff’s claims. The court should not consider . . .

the legal sufficiency of those claims or whether the legal theory

advanced by the plaintiffs is probably unsound . . . . [T]he

threshold to withstand a motion to dismiss under Fed. R. Civ. P.

12(b)(1) is thus lower than that required to withstand a Rule

12(b)(6) motion.” (internal quotation marks omitted)).

Here, there is complete diversity of citizenship: Plaintiff

is a citizen of Pennsylvania, while Defendants are citizens of

the District of Columbia or states other than Pennsylvania. 

Defendant Cody maintains that the amount in controversy does not

exceed $75,000 because Plaintiff’s scholarship was valued at

$50,000 per year and Plaintiff received that amount for three of

the four years he could have wrestled. Plaintiff was let go in

the middle of his third year, however, and, unable to compete,

allegedly did not receive all the benefits of the bargain that

year (or the next year). Additionally, while Cody argues that

the tort claims should not be considered in calculating the

amount in controversy because the statute of limitations

purportedly bars them, the law is clear that defenses to claims,

including a statute of limitations bar, do not reduce the amount

in controversy for jurisdictional purposes. See Wade v. Rogala,

270 F.2d 280, 284 (3d Cir. 1959) (quoting St. Paul, 303 U.S. at
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289); Apicella v. Valley Forge Military Acad. & Junior Coll., 630

F. Supp. 20, 24 (E.D. Pa. 1985). Thus, the Court cannot conclude

at this early stage that it is legally certain that Plaintiff

could not recover more than $75,000. Subject matter jurisdiction

exists. 

B. Venue

Although a challenge to personal jurisdiction is typically

decided before one to venue, a court may “reverse the normal

order” and consider venue first when there is a “sound prudential

justification for doing so.” Leroy v. Great W. United Corp., 443

U.S. 173, 180 (1979); see also Cottman Transmission Sys., Inc. v.

Martino, 36 F.3d 291, 293 (3d Cir. 1994); J.F. Lomma, Inc. v.

Stevenson Crane Servs., Inc., No. 10-3496, 2011 U.S. Dist. LEXIS

10998, at *9 (D. N.J. Feb. 3, 2011) (“As the venue issue is clear

and dispositive, this matter presents a ‘sound prudential

justification’ for deciding the issue of venue before that of

personal jurisdiction.”); Reliance Standard Life Ins. Co. v.

Aurora Fast Freight, Inc., No. 96-7488, 1997 U.S. Dist. LEXIS

1904, at *5 n.2 (E.D. Pa. Feb. 24, 1997) (finding it unnecessary

to address the motion to dismiss for lack of personal

jurisdiction because venue was clearly improper). Because venue

in the Eastern District of Pennsylvania is clearly improper in

this case, see infra, it is not necessary to address Defendants’

motions to dismiss for lack of personal jurisdiction. 
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The Court notes at the outset that both parties confuse the

applicable law governing the issues in this case. Notably, venue

is concerned with the appropriate district in which to bring a

claim (in contrast to personal jurisdiction, which is concerned

with the proper state). When considering a motion to dismiss for

improper venue in a federal case based solely on diversity, the

governing statute is 28 U.S.C. § 1391(a):

A civil action wherein jurisdiction is founded only

on diversity of citizenship may, except as otherwise

provided by law, be brought only in (1) a judicial

district where any defendant resides, if all defendants

reside in the same State, (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) a judicial district in which any

defendant is subject to personal jurisdiction at the time

the action is commenced, if there is no district in which

the action may otherwise be brought.

28 U.S.C. § 1391(a) (2006). Corporations, for the purposes of

the venue statute, are deemed to reside in any judicial district

in which they are subject to personal jurisdiction when the

action commenced. Id. § 1391(c). Under § 1391(a)(2), “[t]he

test for determining venue is not the defendant’s ‘contacts’ with

a particular district, but rather the location of those ‘events

or omissions giving rise to the claim.’” Cottman, 36 F.3d at

294. Events or omissions with tangential connections to the

litigation are not enough to make venue proper. Id. Thus, while

a court must accept the allegations in the plaintiff’s complaint

as true when considering a motion to dismiss for improper venue,
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Leone v. Cataldo, 574 F. Supp. 2d 471, 483 (E.D. Pa. 2008), and

though the defendant bears the burden of proving that venue is

improper, Myers v. Am. Dental Ass’n, 695 F.2d 716, 724-25 (3d

Cir. 1982), the venue statute “still favors the defendant in a

venue dispute by requiring that the events or omissions

supporting a claim be ‘substantial.’” Cottman, 36 F.3d at 294.

In this case, the critical venue provision is § 1391(a)(2),

because Defendants do not all reside in Pennsylvania and because

there is another district in which this action could be brought. 

The record is clear that a very substantial part of the events

took place at American University, in Washington, D.C.—that is

where the athletic scholarship agreement was to be performed,

where the Grant-in-Aid agreement for Plaintiff’s third year was

entered into, and where Plaintiff learned he was being removed

from the team. While these events would not necessarily preclude

another venue’s also having been the location of a “substantial

part” of the events giving rise to the claims, no alleged act

giving rise to Plaintiff’s claims occurred in the Eastern

District of Pennsylvania. While Defendant Cody allegedly

attended a wrestling match in Hershey, Pennsylvania, when

attempting to recruit Plaintiff to American, Hershey is in

Dauphin County, in the Middle District of Pennsylvania. 

Likewise, while the denial of Plaintiff’s university appeal to

reinstate his athletic award was sent to Plaintiff’s address in
 Plaintiff’s argument concerning the balance of private and public 1

factors is simply irrelevant; such factors are only considered in a forum non

conveniens challenge, and “the doctrine of forum non conveniens can never

apply if there is . . . mistake of venue.” Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 504 (1947), superseded by statute on other grounds as stated in Am.

Dredging Co. v. Miller, 510 U.S. 443 (1994). Because venue is improper under

§ 1391(a), Plaintiff’s purported “choice” of the Eastern District of

Pennsylvania is entitled to no deference.

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Glen Rock, Pennsylvania, Glen Rock is in York County, in the

Middle District of Pennsylvania. Because nothing in the record

occurred in the Eastern District of Pennsylvania, let alone a

substantial part of the acts giving rise to Plaintiff’s claims,

venue is improper. See Great Seal Moorish Sci. Temple of Am.,

Inc. v. New Jersey, No. 05-0345, 2005 U.S. Dist. LEXIS 21550, at

*7 (E.D. Pa. Sept. 28, 2005) (holding that venue was improper

when the record was devoid of any fact showing a connection with

the district); cf. Rojas v. Trans States Airlines, Inc., 204

F.R.D. 265, 267-68 (D. N.J. 2001) (finding venue improper under

the comparable Title VII standard when there was “no evidence

that the wrongful [act] was committed in [the district]”).1

C. Transfer

When a court rules that venue is improper, it can either

dismiss the action or, “if it be in the interest of justice,

transfer such case to any district . . . in which it could have

been brought.” 28 U.S.C. § 1406(a) (2006). The decision whether

to transfer under § 1406(a) is in the sound discretion of the

district court, Lafferty v. Gito St. Riel, 495 F.3d 72, 75 n.3
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(3d Cir. 2007), and does not require the same consideration of

factors as transfer under § 1404(a) for forum non conveniens. 

See Rojas, 204 F.R.D. at 269. The transferring court in a §

1406(a) analysis “must simply determine a venue in which the

action originally could have been brought that serves the

interest of justice.” Id. Contrary to Defendants’ contention,

the court may transfer under § 1406(a) whether it has personal

jurisdiction over the defendants or not, Goldlawr, Inc. v.

Heiman, 369 U.S. 463, 465-66 (1962), and may do so even if the

defendants have not requested the transfer. See, e.g., Albright

& Friel, Inc. of Del. v. United States, 142 F. Supp. 607, 609

(E.D. Pa. 1956) (holding that the action should be transferred

rather than dismissed, even though the defendant only moved for

dismissal); accord Crenshaw v. Antokol, 287 F. Supp. 2d 37, 45

(D. D.C. 2003).

Because dismissal in this case could cause Plaintiff’s suit

to be time-barred, this Court finds that it is in the interest of

justice to transfer. See generally Lafferty, 495 F.3d at 79. 

Because a substantial part of the events giving rise to

Plaintiff’s claims occurred in Washington D.C., see supra, the

United States District Court for the District of Columbia is an

appropriate venue, and Defendants, who reside and/or work in that

district, would all be subject to personal jurisdiction there. 

Accordingly, the case will be transferred to the United States
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District Court for the District of Columbia for further

proceedings.

III. Conclusion

For the foregoing reasons, the Court denies Defendants’

Motions to Dismiss but, finding venue improper, transfers the

case to the United States District Court for the District of

Columbia pursuant to 28 U.S.C. § 1406(a).