UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DONALD N. TIMM and )

MARY K. TIMM, )

Plaintiffs, )

)

v. ) CAUSE NO.: 2:14-CV-232-PPS-JEM

)

GOODYEAR TIRE AND RUBBER )

COMPANY, GOODYEAR DUNLOP )

TIRES NORTH AMERICAN, LTD., )

HARLETY DAVISON, INC., )

TEGOL, INC., and NANAL, INC., )

Defendants. )

FINDINGS, REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(1)(B) & (C)

This matter is before the Court on a Defendant Harley-Davidson Motor Company Group,

LLC’s Motion to Dismiss, and in the Alternative, Motion to Transfer Venue [DE 20], filed by

Defendant Harley-Davidson Motor CompanyGroup, LLC, sued as Harley-Davidson,Inc., onAugust

18, 2014. Plaintiffs filed a response on September 1, 2014, and Defendant Tegol, Inc., filed a

response in opposition to the Motion on September 11, 2014. Harley-Davidson filed its reply on

September 19, 2014. Defendants GoodyearTire and Rubber Company Inc., Goodyear Dunlop Tires

North America, Ltd., and Nanal, Inc., did not file any briefs related to the instant Motion.

On September 19, 2014, Chief Judge Philip P. Simon entered an Order [DE 46] referring this

matter to the undersigned Magistrate Judge for a report and recommendation on the instant motion

pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge’s

combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the
following reasons, the Court recommends that the District Court deny the Motion.

ANALYSIS

Plaintiffs Donald Timm and Mary Timm filed their Complaint on July 8, 2014, including

claims for negligence and product liability against Defendants for injuries that arose out of a

motorcycle accident in Nebraska. In the instant Motion, Harley-Davidson moves to dismissthe case

for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) or, in the alternative, to

have the Court transfer this case to a district where venue is appropriate. The Timms and Defendant

Tegol oppose transfer of venue. Defendants Goodyear Tire and Rubber Company Inc., Goodyear

Dunlop Tires North America, Ltd., and Nanal, Inc., did not join in or respond to the instant Motion,

did not contest venue or jurisdiction in their Answers, and have not filed motions to dismiss.

Under 28 U.S.C. § 1406(a), a “district court of a district in which is filed a case laying venue

in the wrong division or district shall dismiss or, if it be in the interest of justice, transfer such case

to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Venue in

federal district court is governed by 28 U.S.C. § 1391(b), which provides:

A civil action may be brought in– 

(1) a judicial district where any defendant resides, if all defendants

are residents of the State in which the district is located; 

(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) if there is no district in which an action may otherwise be brought

as provided in this section, any judicial district in which any

defendant is subject to the court’s personal jurisdiction with respect

to such action.

28 U.S.C. § 1391(b). 

2
Harley-Davidson argues that none of the three criteria is met in this case because none of the

defendants are residents of the Northern District of Indiana, no substantial part of the events giving

rise to the claim occurred in the Northern District of Indiana, and there are other districts where

venue is proper. It requests dismissal or transfer of the case. Plaintiffs argue that the Complaint lays

out a prima facie case for jurisdiction in the Northern District of Indiana and the case should not be

transferred, primarily arguing that jurisdiction is appropriate under section 1391(b)(2) because a

substantial part of the events and property that are the subject of the case are located in the Northern

District of Indiana. Defendant Tegol argues that, despite Harley-Davidson’s contentions, all of the

defendants are, in fact, residents of Indiana for the purposes of determining venue. In its reply,

Harley-Davidson argues that Plaintiffs have not sufficiently alleged that all defendants are residents

of Indiana.

28 U.S.C. § 1391 defines residency for the purposes of venue, stating, in relevant part, that 

an entity with the capacity to sue and be sued in its common name

under applicable law, whether or not incorporated, shall be deemed

to reside, if a defendant, in any judicial district in which such

defendant is subject to the court’s personal jurisdiction with respect

to the civil action in question.

28 U.S.C. § 1391(c)(2). As the Seventh Circuit Court of Appeals has explained, “in cases brought

in states with multiple judicial districts . . . , a corporation resides in any district in which it would

be subject to personal jurisdiction were that district a state. Thus, for purposes of evaluating venue,

we must consider whether [the defendant] would be subject to personal jurisdiction in the [district

where the case was filed].” KM Enterprises, Inc. v. Global Traffic Technologies, Inc., 725 F.3d 718,

732 (7th Cir. 2013) (citing 28 U.S.C. § 1391(c)(2) & (d)).

Neither Harley-Davidson nor any of the other defendants has contested personal jurisdiction

3
in this district, and the defense of lack of personal jurisdiction is one that can be waived. See In re

Kutrubis, 550 F. App’x 306, 309 (7th Cir. 2013) (“‘Because the requirement of personal jurisdiction

represents first of all an individual right, it can, like other such rights, be waived.’ One way in which

a party may waive its personal jurisdiction objection is by failing to raise it at the earliest

opportunity.”) (quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

703 (1982)). Most courts that have considered the question, including those in this circuit, have

determined that parties who do not address personal jurisdiction in their initial Rule 12 motion to

dismiss or transfer venue have waived it. See Imperial Crane Servs., Inc. v. Cloverdale Equip. Co.,

No. 13 C 04750, 2013 WL 5904527, at *4 n.7 (N.D. Ill. Nov. 4, 2013) (“[The plaintiff] argues that

venue is also proper pursuant to § 1391(b)(1) because, as an entity subject to personal jurisdiction

in this district, [the defendant] is a ‘resident’ of this district for purposes of venue. As noted above,

venue is proper in any district in which a defendant corporation is subject to the court’s personal

jurisdiction. [The defendant] has not contested this court’s personal jurisdiction. By filing the

present motion without previously or contemporaneously filing a Rule 12(b)(2) motion to dismiss

for lack of personal jurisdiction, [the defendant] has waived that defense. Venue is thus also proper

under § 1391(b)(1) because [the defendant] is a resident of this district.”); XPO Logistics, Inc. v.

Gallatin, No. 13 C 1163, 2013 WL 3835358, at *5 (N.D. Ill. July 24, 2013) (“[The defendant] did

not seek dismissal of any counts based on lack of personal jurisdiction in its initial motion and thus

any challenge on that basis is waived. Because venue is proper in a district in which the defendant

resides and [the defendant] is deemed a resident of Illinois for purposes of the challenged claims,

[the plaintiff]’s claims are properly venued in this district.”); see also Buckley v. G.D USA, Inc., No.

5:13-CV-05216, 2014 WL 3896178, at *4 n.5 (W.D. Ark. Aug. 7, 2014) (“For purposes of venue,

4
a defendant corporation resides in any judicial district in which it is subject to the court’s personal

jurisdiction. [The defendant] has waived any objection to the Court’s exercise of personal

jurisdiction by failing to raise the issue in its motion to dismiss. Venue is proper in this district.”);

Scar Heal, Inc. v. JJR Media, Inc., No. 8:14-CV-733-T-33AEP, 2014 WL 3586500, at *3 (M.D. Fla.

July 8, 2014) (“This Court finds that venue is proper under 28 U.S.C. § 1391(b)-(c). Defendants

failed to object to this Court’s personal jurisdiction because Fed.R.Civ.P. 12(b)(2) was neither

mentioned nor discussed in their Motion to Dismiss, and, as a result, the argument is waived.”);

Bomkamp v. Hilton Worldwide, Inc., No. 4:13-CV-1569 CAS, 2014 WL 897368, at *6 (E.D. Mo.

Mar. 6, 2014) (“[The defendant] waived the defense of lack of personal jurisdiction by failing to

raise it as an affirmative defense in its answer [or a previous Rule 12 motion]. Because [the

defendant] waived any objection to this Court’s exercise of personal jurisdiction, this forum is also

a proper venue.”); Fusionbrands, Inc. v. Suburban Bowery of Suffern, Inc., No. 1:12-CV-0229-JEC,

2013 WL 5423106, at *3 n.2 (N.D. Ga. Sept. 26, 2013) (“The defendants did not raise any personal

jurisdiction objections in their motion, which sought only to dismiss the case for improper venue

under Rule 12(b)(3). Therefore, they have waived the defense that the court lacks personal

jurisdiction over them.”); but see Rankel v. Kabateck, No. 12 CV 216 VB, 2013 WL 7161687, at *3 

(S.D.N.Y. Dec. 9, 2013) (noting that “the existence of venue should be analyzed as of the time of

filing, without regard to whether a defendant may waive a defense based on lack of personal

jurisdiction by virtue of its conduct during litigation” but concluding that there was no need to make

a personal jurisdiction finding in that case) (quoting Bell v. Classic Auto Grp., No. 04CIV.0693,

2005 WL 659196, at *5 (S.D.N.Y. Mar. 21, 2005)); Oden Metro Turfing, Inc. v. Cont’l Cas. Co.,

No. CIV.A. 12-1547, 2012 WL 5423704, at *6 (W.D. La. Oct. 10, 2012) (noting that “[w]hen

5
determining personal jurisdiction for venue purposes, the court must make a separate inquiry into

personal jurisdiction as it existed when the complaint was filed, irrespective of subsequent consent

or waiver” and concluding that there was no personal jurisdiction because the plaintiff failed “to

supplement the record with evidence to support [the plaintiff]’s claim that the Court has personal

jurisdiction over [the defendant]”).

In this case, Harley-Davidson did not contest personal jurisdiction in its Rule 12 motion, and

even after Tegol asserted that the Court has personal jurisdiction over all Defendants in this action,

Harley-Davidson did not argue that it is not subject to personal jurisdiction in this district. Instead,

it merely argues that Plaintiffs have not met their burden of proving Harley-Davidson is a resident

of Indiana. 

The Seventh Circuit has not clearly identified the party that bears the burden of proof for

venue. See Robinson Steel Co. v. Caterpillar Inc., No. 2:10 CV 438, 2011 WL 923415, at *5 (N.D.

Ind. Mar. 14, 2011) (“In the Seventh Circuit, it is not clear which party bears the burden of proof for

venue.”) (citing cases; citations omitted); Stickland v. Trion Grp., Inc., 463 F. Supp. 2d 921, 924-25

(E.D. Wis. 2006) (“When a defendant does object to the plaintiff’s choice of venue, courts and

commentators disagree as to which party bears the burden of proof. The Seventh Circuit appears not

to have definitivelyresolved the question.”) (comparing In re Peachtree Lane Assocs., Ltd., 150 F.3d

788, 792 (7th Cir.1998) to Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th

Cir.1969)) (other citations omitted). Furthermore, “[e]ven if it is the plaintiff’s burden to prove

proper venue, it can do that through its allegations which are taken to be true when considering a

motion to dismiss pursuant to Rule 12(b)(3).” Robinson Steel Co., 2011 WL 923415, at *5 (citations

omitted); see also Payne v. N. Tool & Equip. Co., No. 2:13-CV-109-JD, 2013 WL 6019299, at *2

6
(N.D. Ind. Nov. 12, 2013) (“When deciding a motion to dismiss for improper venue, . . . the Court

must still take all allegations in the complaint as true, and the Court must resolve all factual disputes

in favor of the party contesting the motion to dismiss.”). 

In the Complaint, Plaintiffs allege that venue is properin this jurisdiction pursuant to Federal

Rule of Civil Procedure 4(k)(1)(A), which provides that “[s]erving a summons . . . establishes

personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general

jurisdiction in the state where the district court is located.” Fed. R. Civ. P. 4(k)(1)(A). HarleyDavidson has not provided any argument or affidavit contesting personal jurisdiction in the Northern

District of Indiana, thereby waiving the defense of lack of personal jurisdiction. The Court

concludes that Harley-Davidson is subject to this Court’s personal jurisdiction and is thus deemed

to reside in the Northern District of Indiana pursuant to 28 U.S.C. § 1391(c)(2), making this an

appropriate venue pursuant to 28 U.S.C. § 1391(b). Accordingly, neither dismissal or transfer are

appropriate.

CONCLUSION

For the foregoing reasons, the Court RECOMMENDS that the District Court DENY the

Defendant Harley-Davidson Motor Company Group, LLC’s Motion to Dismiss, and in the

Alternative, Motion to Transfer Venue [DE 20].

This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with

a copy of this Recommendation to file written objections thereto with the Clerk of Court. The failure

to file a timely objection will result in waiver of the right to challenge this Recommendation before

either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th

7
Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); Provident Bank v. Manor Steel

Corp., 882 F.2d 258, 260-261 (7th Cir. 1989). 

SO ORDERED this 17th day of November, 2014. 

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

Chief Judge Philip P. Simon

8