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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

WOUNDED WARRIOR PROJECT, INC.,

 Plaintiff,

 vs. 

HELP INDIANA VETS, INC.,

DEAN M. GRAHAM,

 

 Defendants.

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 1:13-cv-01857-RLY-DML

ENTRY ON DEFENDANTS’ MOTION TO DISMISS

Plaintiff, Wounded Warrior Project, Inc. (“WWP”), a nonprofit, is suing fellow 

nonprofit, Help Indiana Vets, Inc. (“HIVI”) and its founder, Dean M. Graham 

(collectively “Defendants”) for a post on HIVI’s website. Specifically, WWP brings a 

claim for false advertising under the Lanham Act, 15 U.S.C. 1125(a)(1)(b), and five 

claims under Indiana law. Defendants, acting pro se, move to dismiss the complaint for 

three reasons: (1) no personal jurisdiction, (2) improper venue, and (3) failure to state a 

claim. For the reasons set forth below, the court DENIES the motion, but ORDERS the 

case transferred to the United States District Court for the Northern District of Indiana. 

I. Background 

Wounded Warrior Project, Inc. is a nonprofit founded to provide comfort items to 

service members injured in combat post-September 11, 2001. (Complaint ¶ 7, Filing No. 

1, at ECF p. 2-3). WWP’s “mission is to raise awareness and enlist the public’s aid for 
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the needs of injured service members; to help injured service members assist each other; 

and to provide unique programs and services which are specifically tailored to meet the 

needs of injured service members.” (Id. at ¶ 8, Filing No. 1, at ECF p. 3). WWP has 427 

employees at 15 office locations throughout the United States and in Germany. (Id. at ¶ 

9, Filing No. 1, at ECF p. 3). 

Graham, a veteran of the U.S. military, was injured in the line of duty in Iraq. 

(Declaration of Dean Graham (“Graham Dec.”) ¶ 1, Filing No. 26-1). Upon his return to 

the United States, Graham founded and serves as president of Help Indiana Vets, Inc. 

(Id. ¶ 2, Filing No. 26-1). He operates HIVI out of his home in Columbia City, Indiana. 

(Id., Filing No. 26-1). HIVI receives donor support in order to offer financial assistance 

to Indiana veterans. (Complaint ¶ 34, Filing No. 1, at ECF p. 13). 

WWP alleges that, in or around November 2013, Defendants published false and 

misleading statements of fact about WWP on the HIVI website in a post titled “Wounded 

Warrior Project is a Fraud.”1

 (Id. at ¶ 35, Filing No. 1, at ECF p. 13-14; see also

Complaint Exhibit A (“Exhibit A”), Filing No. 1-1). In addition, this post prompted 

visitors to comment on the post and answer four questions. (Id. at ¶ 36, Filing No. 1, at 

ECF p. 14). While this post was displayed on the website, a PayPal link was to the right 

of the post. (Id. at ¶ 38, Filing No. 1, at ECF p. 14; see also Exhibit A, Filing No. 1-1). 

Furthermore, on July 20, 2013, Graham sent an email to numerous government 

entities, government officials, and media outlets which contained additional allegations 

 

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 WWP lists several statements that were not included in the post shown in Exhibit A. 

Furthermore, the post included in Exhibit A was written before November 2013 as evidenced by 

the comments to that post. 
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that WWP is a fraud. (Id. at ¶ 39, Filing No. 1, at ECF p. 15-16; see also Complaint 

Exhibit B, Filing No. 1-2). WWP alleges these statements are false and misleading. 

According to WWP, numerous WWP supporters were deceived by the comments 

posted by Graham and HIVI. (Id. at ¶ 41, Filing No. 1, at ECF p. 17-19; see also Exhibit 

A, Filing No. 1-1). In addition, the allegations have been reposted on social media 

forums. (Id. at ¶ 42, Filing No. 1, at ECF p. 19-20; see also Complaint Exhibit C, Filing 

No. 1-3). Further, WWP alleges that the statements “have caused a number of WWP 

supporters to cancel their ongoing donations to WWP.” (Id. at ¶ 43, Filing No. 1, at ECF 

p. 20; see also Complaint Exhibit D). 

As a result, WWP brought the present lawsuit alleging: (1) false advertising under the 

Lanham Act; (2) criminal deception; (3) defamation; (4) unfair competition; (5) tortious 

interference with business relationships, and (6) unjust enrichment. WWP seeks treble 

damages, attorneys’ fees, and an injunction. Defendants move to dismiss the claim for 

improper venue, lack of jurisdiction, and failure to state a claim. The court will deal with 

each in turn. 

II. Standard 

Defendants move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) for 

improper venue. When considering a motion to dismiss under Rule 12(b)(3), the plaintiff 

bears the burden of establishing proper venue. See Faur v. Sirius Intern. Ins. Corp., 391 

F. Supp. 2d 650, 657 (N.D. Ill. 2005); see also Bremen v. Zapata Off Shore Co., 407 U.S. 

1, 18 (1972); Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 

1969). The court must take all allegations in the complaint as true, draw all reasonable 
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inferences in favor of the plaintiff, and may consider matters outside the complaint 

without converting the motion to one for summary judgment. Faulkenberg v. CB Tax 

Franchise Sys., LP, 637 F.3d 801, 809-810 (7th Cir. 2011). 

III. Discussion 

A. Improper Venue

Defendants argue that venue is improper in the Southern District of Indiana the 

(“Southern District”), and would rather be proper in the Northern District of Indiana (the 

“Northern District”). In support, Graham states that he lives in Columbia City, Indiana, 

located in the Northern District and operates HIVI out of that home. (Graham Dec. ¶ 2, 

Filing No. 26-1). In addition, Graham states that all of the postings and activity 

contained in the complaint occurred in Columbia City, Indiana. (Id. at ¶ 3, Filing No. 26-

1). WWP alleges that venue is proper because it is HIVI’s “residence” and Defendants 

are residents of Indiana. 

“Federal venue rules determine in which judicial district (among those that have 

the power to hear a given suit) a suit should be heard.” KM Enterprises, Inc. v. Global 

Traffic Techs. Inc., 725 F.3d 718, 724 (7th Cir. 2013). Venue is proper in “a judicial 

district in which any defendant resides, if all defendants are residents of the State in 

which the district is located.” 28 U.S.C. § 1391(b)(1). Here it is undisputed that 

Defendants are residents of Indiana; therefore, for venue to be proper, HIVI must be a 

resident of the Southern District. Regarding HIVI, the statute provides in pertinent part, 

in a State which has more than one judicial district and in which a 

defendant that is a corporation is subject to personal jurisdiction at the time 

an action is commenced, such corporation shall be deemed to reside in any 
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district in that State within which its contacts would be sufficient to subject 

it to personal jurisdiction if that district were a separate State. . . . 

28 U.S.C. § 1391(d). 

 Therefore, venue is proper if the contacts with the Southern District are sufficient 

to subject HIVI to personal jurisdiction here. WWP asserts that personal jurisdiction 

exists because HIVI is incorporated in Indianapolis, Indiana (located in the Southern 

District). See Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014) (noting typical example 

of an all-purpose forum for the exercise of “general personal jurisdiction over a 

corporation are a corporation’s place of incorporation and principal place of business.”). 

However, the place of incorporation is Indiana not Indianapolis, Indiana. 

In addition, WWP asserts that the principal place of business is located in 

Indianapolis, Indiana and claims “Defendants cannot demonstrate that HIVI’s principal 

place of business is in the Northern District of Indiana.” (Filing No. 29, at ECF p. 6). 

The court notes two errors with this argument. First, it is WWP’s burden to show venue 

is proper. Second, Graham included a declaration that his principal place of business is 

in the Northern District and all alleged activity occurred in the Northern District. 

Therefore, the court finds that the principal place of business is in Columbia City, Indiana 

in the Northern District. 

 Because, WWP failed to show that venue is proper in the Southern District, the 

court finds that venue is improper. The court need not consider the other issues before it. 

Nevertheless, simply because venue is improper, the court need not dismiss the case. 
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B. Transferring the Case 

The court may, pursuant to 28 U.S.C. § 1406(a), transfer the case to an appropriate 

court if it is in the interests of justice. This section was enacted in order to resolve a 

problem of “avoiding the injustice which had often resulted to plaintiffs from dismissal of 

their actions merely because they had made an erroneous guess with regard to the 

existence of some elusive fact of the kind upon which venue provisions often turn.” 

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962). A typical case involves the running 

of the statute of limitations. See Farmer v. Levenson, 79 Fed. Appx. 918, 919 (7th Cir. 

2003). 

Here, the court finds that it is in the interests of justice to transfer the case rather 

than dismiss it for improper venue. The articles of incorporation filed with the state of 

Indiana list the principal office address as Gathering Drive, Indianapolis, Indiana. 

Therefore, venue is only improper due to some “elusive fact” – the true principal place of 

business - unknown to WWP, and the court finds that dismissal would be 

disproportionate to the mistake. See Cont’l Ins. Co. v. M/V ORSULA, 354 F.3d 603, 608 

(7th Cir. 2003) (noting that “dismissing the suit because of a mistake that is ‘easy to 

commit’ might be ‘so disproportionate’ a penalty as to constitute an abuse of discretion”).

IV. Conclusion 

For the reasons stated above the court finds that venue is improper in the Southern 

District of Indiana. Nevertheless, the court DENIES the motion to dismiss (Filing No. 

26) and instead ORDERS the Clerk of Court to TRANSFER this case to the United 
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States District Court for the Northern District of Indiana, Fort Wayne Division pursuant 

to 28 U.S.C. § 1406. 

SO ORDERED this 12th day of March 2014. 

 

 _________________________________ 

 RICHARD L. YOUNG, CHIEF JUDGE 

 United States District Court

 Southern District of Indiana 

Distributed Electronically to Registered Counsel of Record.

Copy mailed to: 

Dean Graham

Help Indiana Vets, Inc.

7945 North Brown Road 

Columbia City, Indiana 46725