IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GREGORY MOLCHEN, )

)

Plaintiff, )

)

v. ) 02: 08cv0954

)

FORD MOTOR COMPANY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Presently before the Court is the MOTION, PURSUANT TO FED.R.CIV.P. 12, TO

DISMISS FOR IMPROPER VENUE OR, ALTERNATIVELY, TO TRANSFER CASE FOR

THE CONVENIENCE OF THE PARTIES AND WITNESSES, with brief in support, filed by

defendant Ford Motor Company (Document Nos. 8 and 9), and the BRIEF IN OPPOSITION

filed by Plaintiff, Gregory Molchen. For the reasons that follow, the Motion will be granted in

part and denied in part and, for the convenience of the parties and witnesses and in the interest

of justice, this case will be transferred to the United States District Court for the Eastern

District of Michigan, pursuant to 28 U.S.C. § 1404(a).

Procedural Background

On July 8, 2008, Plaintiff filed a three-count Complaint against Defendant, Ford

Motor Company, in which he alleges breach of contract (Count I), fraud / misrepresentation

(Count II), and violations of the Employee Retirement Income Security Act of 1974 (“ERISA”)

(Count III). It appears that at least two of Plaintiff’s claims involve the alleged denial of

benefits under Defendant’s Voluntary Salaried Separation Program (“VSSP Plan”), which is a

Plan covered by ERISA.
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Defendant has brought the instant motion in which it contends that venue in the

Western District of Pennsylvania is improper under the ERISA venue provision, 29 U.S.C. §

1132(e)(2). In the alternative, Defendant requests that this lawsuit be transferred to the United

States District Court for the Eastern District of Michigan.

Factual Background

As the law requires, at the motion to dismiss stage all disputed facts and inferences

are resolved most favorable to Plaintiff. The following background is drawn from the

Complaint and the factual allegations therein are accepted as true for the purpose of this

Opinion.

Plaintiff, a former employee of Defendant, Ford Motor Company, alleges that he was

“promised by Ford that moving to Michigan would continue his ascent up the ‘career ladder’ at

Ford;” (Complaint, ¶ 27); that after moving to Michigan, he was enticed by Defendant into

accepting an offer of voluntary separation with severance benefits; and that Defendant then

“completely and utterly failed to provide him any severance benefits.” (Br. in Opp’n, at 1).

Standard of Review

In considering a motion to dismiss for improper venue under Federal Rule of Civil

Procedure 12(b)(3), the Court must generally accept as true the allegations in the complaint,

unless contradicted by defendant's affidavits. Holiday v. Bally’s Park Place, Inc., 2007 WL

2600877, at *1 (E.D. Pa. Sept. 10, 2007). “The court may examine facts outside the complaint

to determine proper venue, but must draw all reasonable inferences and resolve all factual

conflicts in the plaintiff's favor.” Fellner v. Philadelphia Toboggan Coasters, Inc., 2005 WL
From a review of the Complaint, it appears that a majority of Plaintiff’s claims may 1

be governed by ERISA. For example, Count I (breach of contract) and a portion of

Count Two (fraud / misrepresentation) are based on statements and actions which

concern Plaintiff’s alleged entitlement to VSSP benefits. Count Three of the

(continued...)

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2660351, at *1 (E.D. Pa. Oct.18, 2005); accord Heft v. AAI Corp., 355 F. Supp. 2d 757, 762

(M.D. Pa. 2005) (“Whatever the nature of the parties' submissions, the court is bound to view

the facts in the light most favorable to the plaintiff.”).

The United States Court of Appeals for the Third Circuit has held that the movant

(the defendant) bears the burden of demonstrating that venue is not proper. Myers v. American

Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982). The defendant also bears the burden of

establishing that a venue transfer is warranted. Furthermore, “in ruling on defendant's [transfer]

motion the plaintiff's choice of venue should not be lightly disturbed.” Jumara v. State Farm

Ins. Co., 55 F.3d 873, 879 (3d Cir.1995).

Questions of venue are governed by either 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. 

See Jumara, 55 F.3d at 878. The standards for transfer of an action differ depending on

whether venue has been properly laid. 

Discussion

A. Venue

Defendant argues that Plaintiff has not met the requirements for jurisdiction and

venue under ERISA. Defendant contends that this lawsuit should have been brought in the

United States District Court for the Eastern District of Michigan, where venue clearly would be

proper.

1
(...continued) 1

Complaint is clearly an ERISA claim. Defendant has also filed a Motion to

Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) in which Defendant seeks to have

Counts I and II dismissed because these claims are allegedly preempted by ERISA. 

However, because this matter will be transferred to the United States District Court

for the Eastern District of Michigan, this Court will not rule on that motion.

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Section 502(e)(2) of ERISA, 29 U.S.C. § 1132(e)(2), governs the determination of

venue in ERISA cases:

When an action under this subchapter is brought in a district court of the

United States, it may be brought in the district where the plan is

administered, where the breach took place, or where a defendant resides or

may be found, and process may be served in any other district where a

defendant resides or may be found.

The United States Court of Appeals for the Third Circuit has provided no guidance as to where,

exactly, a plan is administered, a breach takes place, or a defendant resides or may be found. 

Indeed, there is little federal case law interpreting § 1132(e)(2).

1. An ERISA Action May Be Brought Where the Plan is Administered

Venue is proper in a district where the plan is administered. An ERISA plan is

administered where the plan is managed. Of the three possible grounds for bringing this action

in this District, the first, where the plan is administered, can be eliminated immediately. 

Plaintiff does not contest that the Plan is not administered in this District. Further, Defendant’s

Affidavit makes clear that the VSSP Plan is administered at Ford’s principal place of business

in Dearborn, Michigan. See Affidavit of David Zochowski, ¶ 6.
Defendant bases it argument on the fact that the VSSP Plan does not reside or is 2

found in the Western District of Pennsylvania. However, the ERISA venue statute

specifically states that an action may be brought “where a defendant resides or may

be found. . . .” 29 U.S.C. § 1132(3)(2) (emphasis added). At this time, the VSSP

Plan is not a defendant in this lawsuit; rather, the only named defendant is Ford

Motor Company.

5

2. An ERISA Action May Be Brought Where the Alleged Breach Occurred

Venue is also proper where the alleged breach occurred. Most courts that have

addressed this question have determined that the alleged breach occurred in the district where

the beneficiary receives, or should have received, benefits. See Keating v. Whitmore Mfg. Co.,

981 F. Supp. 890, 892 (E. D. Pa. 1997). Other courts, however, have looked to the location

where the defendant made the decision not to pay the benefits. See Turner v. CF&I Steel Corp.,

510 F. Supp. 537, 541 (E.D. Pa. 1981).

Plaintiff states in his Complaint that he currently resides in Canton, Michigan, and

that he was working and residing in Michigan when he was allegedly informed that he would

not receive VSSP benefits. Therefore, the Court concludes that the alleged breach occurred in

Michigan - both the district where the beneficiary (Plaintiff) should have received benefits and

the district in which the decision not to pay benefits occurred.

3. An ERISA Action May Be Brought Where the Defendant Resides or May be

Found2

A defendant may be “found” in any district where the defendant’s contacts would be

sufficient to support personal jurisdiction over the defendant in that district. See

DiGiovannantio v. Local 153 Pension Fund, Civ. A. No. 91-7171, 1992 U.S. Dist. LEXIS

8331, at *5 (E.D. Pa. June 11, 1992) (“For purposes of [the ERISA venue provision], a
6

defendant is ‘found’ in any district in which personal jurisdiction may be obtained over the

defendant” ).

Under the minimum contacts test, the non-resident defendant must have purposefully

availed itself of the privilege of conducting activities in the forum state, thereby invoking the

benefits and protections of its laws. See Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). 

Furthermore, jurisdiction may be exercised under either a general jurisdiction theory or a

specific jurisdiction theory. Id. If general jurisdiction exists, the defendant must defend against

any suit in the relevant forum, regardless of whether the subject matter of the litigation has any

connection to that forum. See Pennzoil Prods Co. v. Colelli & Assocs., 149 F.3d 197, 200 (3d

Cir. 1998). To establish general jurisdiction, the non-resident defendant’s contacts with the

forum must be “continuous and substantial.” Provident Nat’l bank v. Cal. Fed. Savs. & Loan

Ass’n, 819 F.2d 434, 437 (3d Cir. 1987). 

Specific jurisdiction exists only when the defendant has “purposely directed his

activities at residents of the forum and the litigation results from alleged injuries that ‘arise out

of or [are] related to’ those activities.” BP Chems. Ltd. v. Formosa Chem. & Fibre Corp., 229

F.3d 2554, 259 (3d Cir. 2000) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472

(1985)). This requirement “ensures that a defendant will not be haled into a jurisdiction solely

as a result of random, fortuitous, or attenuated contacts.” Burger King, 471 U.S. at 475. 

Furthermore, in addition to the required “minimum contacts” necessary to exercise jurisdiction,

a court must determine that such an exercise comports with “traditional notions of fair play and

substantial justice.” IMO Indus. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (citing Int’l

Shoe, 326 U.S. at 316).
7

The ERISA allegations in this lawsuit involve the alleged improper denial of

benefits. The decisions, actions and/or statements made with regard to the VSSP Plan all were

made solely in Michigan with regard to a Michigan resident, i.e., Plaintiff. Therefore, this

Court is faced only with the question of whether it may exercise general personal jurisdiction

over Defendant. See Toys ‘R’ Us, Inc. v. Two, Step, S.A., 318 F. 3d 446, 451 (3d Cir. 2003)

(specific personal jurisdiction requires that plaintiff’s claims relate to or arise out of defendant’s

forum activities). 

The named defendant in this matter is Ford Motor Company, not the VSSP.

According to Plaintiff, Ford Motor Company maintains a marketing and sales organization in

the Western District of Pennsylvania. Ford Motor Company also sells vehicles in Western

Pennsylvania each year and does extensive advertising on television, radio, and in print in the

Western District of Pennsylvania. For the purpose of this Opinion only, the Court finds and

rules that Defendant has sufficient contacts with this forum to support general personal

jurisdiction over it. Accordingly, Defendant’s motion to dismiss for improper venue will be

denied.

B. Transfer Pursuant to § 1404(a)

Section 1404(a) provides for the transfer of a case to another district where it might

have been brought in the “interest of justice” and “for the convenience of parties and

witnesses.” The purpose of § 1404(a) is “to prevent the waste of time, energy and money and

to protect litigants, witnesses and the public against unnecessary inconvenience and expense.”

Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). When ruling on a motion to transfer, “a
8

court should consider all relevant factors to determine whether on balance the litigation would

more conveniently proceed and the interest of justice be better served by the transfer to a

different forum.” Jumara, 55 F.3d at 879.

When considering whether to transfer an action under § 1404(a), a court should not

solely limit its consideration to § 1404(a)’s enumerated factors of convenience of the parties,

convenience of the witnesses, or interests of justice, but should consider all relevant factors,

including both private and public factors. Jumara, 55 F.3d at 879.

The private factors relevant to a transfer analysis include: 

• the plaintiff’s forum preference; 

• the defendant’s preference;

• whether the claim arose elsewhere; and

• the convenience of the parties as indicated by their relative physical

and financial condition; the convenience of the witnesses - - but only to the

extent that the witnesses may actually be unavailable for trial in one of the

fora and the location of books and records (similarly limited to the extent that

they could not be produced in one of the fora). 

Id.

The public interests include:

• the enforceability of the judgment;

• practical considerations that could make the trial easy, expeditious, or

inexpensive;

• the relative administrative difficulty in the two fora resulting from

court congestion;

• the local interest in deciding local controversies at home;

• the public policies of the fora; and
9

• the trial judge’s familiarity with applicable state law.

Id. at 879-80.

The private and public factors are to be balanced and weighed. It is important to

keep in mind that “unless the balance of convenience of the parties is strongly in favor of

defendant, the plaintiff’s choice of forum should prevail.” Shutte v. Armco Steel Corp., 431

F.2d 22, 25 (3d Cir. 1970) (emphasis in original). Thus, “the defendant must show that its

alternative forum is more convenient; if factors are in equipoise, transfer is not proper.” Id.

a. Private Factors

The Plaintiff’s forum preference is the Western District of Pennsylvania. The Court

is mindful of the general principle that “there is a strong presumption in favor of the plaintiff’s

choice of forum when that forum is the plaintiff’s home.” DiMark Marketing, Inc. v. Louisiana

Health Service and Indemnity Company, 913 F. Supp. 402, 408 (E.D. Pa. 1996) (emphasis

added). It is noteworthy that in this case while Plaintiff has a historical connection to the

Western District of Pennsylvania, it is not contested that he does not presently reside in this

forum district. Rather, Plaintiff resides in Canton, Michigan, which is located in the Eastern

District of Michigan.

Defendant’s preference is the United States District Court for the Eastern District of

Michigan.

The Court finds that a substantial part of the activities and events which give rise to

Plaintiff’s lawsuit occurred in the State of Michigan. For example, the allegations of breach of

contract, fraud / misrepresentation, and violation of ERISA which are encompassed in Counts I,
10

II, and III of Plaintiff’s Complaint involve alleged actions and decisions made by Ford

representatives which occurred at or near its Dearborn, Michigan location. Although the Court

has also concluded that Pennsylvania is a proper forum for this action, the Court has similarly

concluded that Michigan is likewise a proper forum based on the significant events which

occurred there.

The last private factor to be considered, convenience of the parties and the witnesses,

weighs in favor of Michigan. Defendants contend that the representatives of Ford who

allegedly denied Plaintiff benefits under the VSSP Plan, as well as the documents or other

sources of proof, all reside or are located within the Eastern District of Michigan. Plaintiff

responds that he grew up in Western Pennsylvania, that he attended college and graduate school

in the area, and that he eventually intends to relocate back to Western Pennsylvania. However,

Plaintiff has offered no evidence that being required to produce witnesses and documents in

Michigan is inconvenient or poses a financial hardship on him. Accordingly, the Court finds

that there is no financial burden on Plaintiff to litigate this matter in Michigan.

2. Public Factors

Defendant argues that there are no public factors which weigh against the transfer of

this case to Michigan. Plaintiff responds that he has been a resident of Western Pennsylvania

for most of his life, that he is actively trying to sell his home in Michigan so that he can relocate

to Western Pennsylvania, and that he “only moved to Michigan because of the

misrepresentations made by Ford.” Br. in Opp’n at 8.
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Initially, it appears that any judgment which may be entered in this action against

Defendant would be enforceable in Michigan.

As to the practical considerations that would make the trial easy, expeditious or

inexpensive, the Court finds and rules that Michigan is the better forum since both Plaintiff and

Defendant are currently located there, Defendant is subject to the personal jurisdiction of the

Eastern District of Michigan, as well as the witnesses and relevant documentation being located

there. Thus, the Court concludes that this factor favors the Defendant.

The Court cannot determine the relative administrative difficulty in the two fora

which results from court congestion since both parties are silent about this factor and the Court

has no evidence or statistics on which to base any decision on this public factor. Accordingly,

the Court concludes that this factor favors neither party.

As for the local interest in deciding local controversies at home and the public

policies of the fora, the Court acknowledges that Plaintiff has a history with the Western

District of Pennsylvania and intends to eventually relocate to this District; however, at the

present time, both Plaintiff and Defendant are citizens of the State of Michigan and the VSSP

Plan, is administered at Ford’s principal place of business in Dearborn, Michigan. Therefore,

the Court concludes that this factor favors the Defendant. 

Lastly, the public factor regarding the trial judge’s familiarity with applicable state

law also weighs in favor of the Defendant. Any claims made under the VSSP Plan, if not

preempted by ERISA, appear to be governed by Michigan law. See Affidavit of David

Zochowski. Thus, trial judges in the Eastern District of Michigan are more familiar with the

applicable Michigan law than those in the Western District of Pennsylvania; however, the Court
Assuming arguendo that venue was improperly laid in this District, the Court 3

would have reached the same result under 28 U.S.C. § 1406(a), which provides for

the transfer or dismissal of a case where the original venue is improper. If the

Court had determined that original venue in this District was improper, the Court

would have transferred this action to the proper venue of Michigan, the venue in

which the action originally could have been brought that serves the interest of

justice. 28 U.S.C. § 1406(a).

12

concludes that trial judges in either district are equally capable of applying Michigan law to the

provable facts of this lawsuit.

3. The Balance of the Private and Public Factors

After carefully considering and balancing the private and public interests of the

parties, the Court finds and rules that the factors weigh heavily in favor of a transfer. The

inconvenience imposed upon witnesses and the Defendant, the location of operative events, the

location of relevant books and records, and the practical considerations that could make trial

easy, expeditious or inexpensive favor transfer and outweigh the importance of the Plaintiff’s

original choice of forum and the inconvenience, if any, to be borne by Plaintiff.

These factors, when combined with the interest of justice, make a compelling case

for transfer under § 1404(a). As a result, the Court finds and rules that Defendant has met its

burden of showing that a balancing of the pertinent factors weighs in favor of transfer. Thus,

the transfer of this action to the Eastern District of Michigan will best serve the interests of

convenience and justice under 28 U.S.C. § 1404(a).3
13

CONCLUSION

After an extensive review of the case and weighing of all private and public factors,

the Court finds and rules that this case should be transferred. Not only will the litigation

proceed more conveniently in Michigan, but the interest of justice will be better served by a

transfer to that forum. In accordance with 28 U.S.C. § 1404(a), for the reasons set forth above,

Defendant’s request for a transfer will be granted.

An appropriate Order follows.

McVerry, J.
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GREGORY MOLCHEN, )

)

Plaintiff, )

)

v. ) 02: 08cv0954

)

FORD MOTOR COMPANY, )

)

Defendant. )

ORDER OF COURT

AND NOW, this 20th day of November, 2008, in accordance with the foregoing

Memorandum Opinion, it is hereby ORDERED as follows:

1. Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(3) is DENIED;

2. Defendant’s alternative Motion to Transfer is GRANTED and this action is

TRANSFERRED FORTHWITH to the United States District Court for the Eastern District

of Michigan pursuant to 18 U.S.C. § 1404(a); and

3. Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) (Document No. 10) will remain outstanding, pending consideration and resolution by

the United States District Court for the Eastern District of Michigan.

BY THE COURT:

s/Terrence F. McVerry

United States District Court Judge
cc: Michael C. Hamilton, Esquire 

Email: mhamilton@winikofflaw.com 

Nancy R. Winschel, Esquire 

Email: NWinschel@dmclaw.com 

Joseph A. DiMenno, Esquire

Email: jdimenno@dmclaw.com