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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Harry D Dalton, 

Plaintiff, 

v. 

Wade Atchison, et al., 

Defendants. 

No. CV-16-08014-PCT-JZB

ORDER 

 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint 

on Improper Venue Grounds or, in the Alternative, to Transfer Venue pursuant to 28 

U.S.C. § 1406(a). (Doc. 7.) Defendant requests the Court dismiss this matter because 

venue is not proper in the United States District Court for the District of Arizona pursuant 

to 28 U.S.C. § 1391(b). Alternatively, Defendant requests the Court transfer this case to 

the United States District Court for the Eastern District of Arkansas. As detailed below, 

none of the requirements of § 1391(b) are met here and, therefore, venue is not proper in 

this Court. In the interests of justice, the Court will transfer this case to the United States 

District Court for the Eastern District of Arkansas, where the case could have been 

brought. 

I. Background 

 On December 21, 2015, Plaintiff, proceeding pro se, filed his Complaint in 

Arizona state court, asserting claims against Defendant for breach of contract and 

intentional infliction of emotional distress. (Doc. 1-1 at 4-12.) Specifically, Plaintiff 

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asserts that Defendant breached the parties’ insurance contract when Defendant, an agent 

of Allstate, failed to notify Plaintiff of the possible risks in changing Plaintiff’s “Builder’s 

Risk Policy” to a home owner’s policy, and subsequently allowed Plaintiff’s policy to 

lapse. (Id. ¶¶ 12, 15-16, 22, 25.) Plaintiff asserts that he obtained the Builder’s Risk 

Policy to insure a construction project at his property located in Dover, Arkansas. (Id. ¶ 

21.) According to Plaintiff, on May 24, 2013, Plaintiff suffered a neck injury on the 

property while operating a piece of heavy equipment, and was transported to a hospital in 

Littlerock, Arkansas. (Id. ¶ 24.) During Plaintiff’s three-day stay at the hospital, 

electrical wire was stolen from the construction site. (Id. ¶ 25.) Plaintiff claims that 

Allstate adjusters denied Plaintiff’s claim for theft. Plaintiff asserts Defendant offered to 

personally pay half of the cost to replace the wire, but never paid Plaintiff that amount. 

(Id.) Plaintiff further asserts that Defendant failed to assist Plaintiff in reporting the theft 

to the police. (Id.) On December 18, 2013, Plaintiff, on a recommendation by his doctor 

in Arkansas, underwent surgery in Los Angeles, California for his injury. (Id. ¶¶ 25-26.) 

 On January 27, 2016, Defendant removed the action to this Court based on 

diversity jurisdiction.1

 (Doc. 1.) On February 4, 2016, Defendant filed his Motion to 

Dismiss on Improper Venue Grounds or, in the Alternative, Motion to Change Venue to 

the Eastern District of Arkansas, pursuant to 28 U.S.C. §1406(a). (Doc. 7.) Plaintiff 

opposes the Motion and asserts that, due to his medical condition and financial status, and 

his domicile in Arizona, venue is proper in the United State District Court for the District 

of Arizona. (Doc. 13 at 2.) Below, the Court addresses the parties’ arguments. 

II. Discussion 

a. Legal Standards 

 

1

 The parties do not dispute that the Court has diversity jurisdiction over this matter. 28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil 

actions where the matter in controversy exceeds the sum or value of $ 75,000, exclusive 

of interest and costs, and is between . . . [c]itizens of different States.”). In his 

Complaint, Plaintiff asserts that he resides in Arizona and Defendant resides in Arkansas. 

(Doc. 1-1 at 4, ¶¶ 1-2.) Plaintiff further seeks over $75,000 in damages. (Id. at 11-12.) 

Defendant asserts in his Notice of Removal that all of the requirements of diversity jurisdiction have been met. (Doc. 1 at 1-2.) 

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 A defendant may challenge venue pursuant to Rule 12(b)(3) of the Federal Rules 

of Civil Procedure and 28 U.S.C. § 1391. If venue is improper, the Court must either 

dismiss the case or, “if it be in the interest of justice, transfer [the] case to any district or 

division in which it could have been brought.” See 28 U.S.C. § 1406(a). The decision 

whether to dismiss the case or transfer it is within the Court’s discretion. In re Hall, 

Bayoutree Associates, Ltd., 939 F.2d 802, 804 (9th Cir. 1991). However, “the general 

preference . . . is for the case to be transferred instead of dismissed altogether.” 

Kewlmetal Inc. v. Bike Builders Bible, Inc., 2:15-cv-01008 JWS, 2015 U.S. Dist. LEXIS 

168362, at *2 (D. Ariz. Dec. 15, 2015) (citing See Brodt v. Cty. of Harford, 10 F. Supp. 

3d 198, 203 (D.D.C. 2014), and Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 

1103 (C.D. Cal. 2001)). 

b. Venue in the District of Arizona is improper. 

 Defendant argues that the Court should dismiss this case because venue in the 

District of Arizona is not proper pursuant to 28 U.S.C. § 1391(b). Section 1391(b) 

provides the following: 

(b) Venue in general. A civil action may be brought in— (1) a judicial district in which 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. 

“The venue statutes are generally intended to protect a defendant from being forced to 

defend in an unfair or inconvenient forum.” Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 

1106 (C.D. Cal. 2001). The “[p]laintiff has the burden of proving that venue is proper in 

the district in which the suit was initiated.” Hope v. Otis Elevator Co., 389 F. Supp. 2d 

1235, 1243 (E.D. Cal. 2005) (citing Airola v. King, 505 F. Supp. 30, 31 (D. Ariz. 1980)). 

When deciding a challenge to venue, the pleadings need not be accepted as true, and the 

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district court may consider facts outside of the pleadings. Arguenta v. Banco Mexicano, 

S.A., 87 F.3d 320, 324 (9th Cir. 1996). 

 Here, the Court finds that venue is not proper in this Court pursuant to 28 U.S.C. 

§ 1391(b). First, venue is improper under § 1391(b)(1) because Defendant resides in 

Arkansas. (Doc. 1-1 at 4, ¶¶ 1-2; Doc. 7-1 ¶¶ 2-3.) Second, venue is improper under § 

1391(b)(2) because, as the parties agree, the events giving rise to Plaintiff’s claims took 

place in Arkansas, not Arizona. (Doc. 1-1 ¶¶ 21, 24; Doc. 7 at 4.) 

 Finally, § 1391(b)(3) does not apply because this case could have been brought in 

the Eastern District of Arkansas. Defendant resides in the Eastern District of Arkansas, 

and a substantial part of the alleged events giving rise to Plaintiff’s claims occurred in 

that District. (Doc. 1-1 at 4, ¶¶ 1-2; Doc. 7-1 ¶ 2.) Further, based on Plaintiff’s 

Complaint and the parties’ briefing, it appears the United States District Court for the 

District of Arkansas would have subject matter jurisdiction over this case and personal 

jurisdiction over both parties. (Id.) Importantly, Plaintiff does not contest that this action 

could have been brought in that District Court. 

 Instead, Plaintiff requests that this case proceed in the District of Arizona because 

his medical condition, which resulted from the accident in Arkansas, hinders his ability to 

travel and prosecute his claims in Arkansas. (Doc. 13 at 2.) However, Plaintiff does not 

assert any argument that this case meets any of the requirements of § 1391(b).2

 

 Because none of the provisions of § 1391(b) are met in this case, venue is not 

proper in the District of Arizona. Therefore, the Court must now determine whether to 

 

2

 In a Sur-Reply, Plaintiff also asserts that “[o]riginally this suit was filed in Mojave County Court, but the defense lawyer moved the case to the U.S. Federal Court, 

District of Arizona. Why did the defense lawyer move the case if she did not intend for it 

to be heard in that court?” (Doc. 15 at 2.) First, Plaintiff did not seek leave to file his 

Sur-Reply in violation of the Local Rules of Civil Procedure. See LRCiv. 7.2. Second, 

even considering Plaintiff’s Sur-Reply, Defendant’s removal did not waive his right to challenge venue in Arizona. See Crumrine v. NEG Micon USA, Inc., 104 F. Supp. 2d 1123, 1128 (N.D. Iowa 2000) (holding that when a “defendant removes an action from a state court in which he has been sued, he consents to nothing and ‘waives’ nothing; he is exercising a privilege unconditionally conferred by statute, and, since the district court to which he must remove it is fixed by law, he has no choice.”) (quoting Greenberg v. 

Giannini, 140 F.2d 550, 553 (2d Cir. 1944)). 

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dismiss this case or transfer it to the Eastern District of Arkansas. 

c. Transferring this case to the Eastern District of Arkansas is 

appropriate. 

 Pursuant to 28 U.S.C. § 1406(a), “[t]he 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.” See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) (holding that “[t]he 

language of § 1406(a) is amply broad enough to authorize the transfer of cases, however 

wrong the plaintiff may have been in filing his case as to venue, whether the court in 

which it was filed had personal jurisdiction over the defendants or not.”). 

 As stated above, Plaintiff’s claim could have been brought in the Eastern District 

of Arkansas. Defendant resides in the Eastern District of Arkansas. (Doc. 7-1 ¶¶ 2-3.) 

Further, a substantial part of the alleged events giving rise to this litigation occurred in 

the Eastern District of Arkansas: the insurance contract was negotiated in Dover, 

Arkansas3

 (Doc. 1-1 at 8, ¶ 21); Plaintiff was on property located in Arkansas when his 

injury occurred, and the theft occurred on the same property (id. at 8-9, ¶¶ 21-25); and all 

of the relevant communications and transactions between the two parties occurred in 

Arkansas (id. at 6-7, ¶¶ 12, 14-16). Transferring this case to a new venue would serve the 

interests of justice because it would allow Plaintiff to continue the litigation in the correct 

forum. 

 Plaintiff asserts that the District of Arizona is the correct venue due to his health 

problems, as well as the need to be close to his doctor. (Doc. 13 at 2.) However, Plaintiff 

fails to identify a court other than the District Court for the Eastern District of Arkansas 

where this case could have been brought. And, although Plaintiff states that “[a]ll . . . 

witnesses can have depositions taken in place of them appearing in person in Arizona,” 

(Doc. 13 at 2), the Court assumes that Plaintiff would be able to telephonically depose 

 

3

 Dover is an incorporated city situated in Pope County, Arkansas. POPE COUNTY

ARK., http://www.popecounty ar.com/index.html (last visited June 16, 2016). Under 28 

U.S.C. § 83(a)(2), Pope County resides in the Eastern Division of the Eastern District of 

Arkansas. 

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Defendant and other witnesses who reside in Arkansas. 

 Additionally, it appears that Plaintiff’s claims may be time-barred if dismissed. 

See Ark. Code. Ann. § 16-56-105 (2015);4 McQuay v. Guntharp, 331 Ark. 466, 474-76 

(1998) (holding that the tort of outrage is governed by a three-year statute of limitations). 

Plaintiff filed his Complaint on December 21, 2015, alleging at least some unlawful 

conduct that occurred in May 2013. (Doc. 1-1 ¶ 21.) Therefore, the Court favors 

transferring, rather than dismissing, this case in the interests of justice. See Westphal v. 

Mace, 671 F. Supp. 665, 668 (D. Ariz. 1987) (holding that transferring the case from 

Arizona to Nevada would be in the interests of justice when the injury to Plaintiff 

occurred in Nevada and the only connection Defendant had to Arizona was advertising in 

Arizona); Mach 1 Air Servs. Inc.v. Bustillos, No. CV-12-02617-PHX-GMS, 2013 U.S. 

Dist. Lexis 41501, *31-32 (D. Ariz. March 25, 2013) (ruling that “the interests of justice 

warrant transfer of the entire case to the Western District of Texas” because “[t]hat court 

would have jurisdiction over all the [p]arties. . . . [and the plaintiff] would likely be 

severely prejudiced by dismissal.”). Accordingly, the Court will transfer the case to the 

Eastern District of Arkansas. 

III. Conclusion

Although Plaintiff claims Arizona is an easier and more financially feasible venue 

to adjudicate his case, venue in this Court is improper pursuant to 28 U.S.C. § 1391(b). 

Rather than dismissing the case, in the interests of justice, the Court will transfer this 

action to the Eastern District of Arkansas. 

 Accordingly, 

IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Complaint on 

 

4

 Ark. Code Ann. § 16-56-105 provides, in relevant part: 

The following actions shall be commenced within three (3) years after the cause of action accrues: 

 (1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of 

record of the United States or of this or some other state 

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Improper Venue Grounds or, in the Alternative, to Transfer Venue (Doc. 7) is granted as 

provided in this Order. 

IT IS FURTHER ORDERED that this case be transferred to the United States 

District Court for the Eastern District of Arkansas. 

 Dated this 23rd day of June, 2016. 

Honorable John Z. Boyle

United States Magistrate Judge

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