United States District Court, D. Kansas
RENEE TERESA GOELLNER-GRANT, KYLE D. GRANT and ALEXANDER GOELLNER, Plaintiffs,
JLG INDUSTRIES, INC., Defendant.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
case arises out of a tragic accident. Plaintiffs are the wife
and natural children of Randall Grant. In 2015, Mr. Grant was
crushed by an aerial boom lift that was manufactured by
defendant JLG Industries, Inc. Mr. Grant died as a result of
the incident. The incident occurred in Missouri, and
defendant is a Pennsylvania corporation with its principal
place of business in Pennsylvania. Before the aerial boom
lift arrived in Missouri, defendant initially shipped it to
has filed a motion to dismiss for lack of personal
jurisdiction and improper venue. (Doc. 9). For the following
reasons, the court determines that Kansas is not a proper
venue for this case. Instead of dismissing the case, however,
the court will transfer the case to a jurisdiction in which
venue is proper-the United States District Court for the
Middle District of Pennsylvania.
originally filed a version of this case in Missouri state
court. Defendant removed the case to federal court. But then,
upon defendant's motion, the United States District Court
for the Eastern District of Missouri determined that it did
not have personal jurisdiction over defendant and dismissed
the case. Specifically, the court noted that defendant had
shipped the aerial boom lift to Kansas-not Missouri. The lift
was later transferred to Missouri. After the Eastern District
of Missouri dismissed the case, plaintiffs refiled in Kansas
federal court. Now defendant argues that this court also
lacks personal jurisdiction, and, alternatively, Kansas is
not a proper venue for the case. Plaintiffs disagree, and
alternatively ask for jurisdictional discovery before the
court decides the motion.
court proceeds directly to the venue question here. Even if
the court has personal jurisdiction over defendant (which is
questionable), it appears that the only connection to Kansas
is the fact that the aerial boom lift was initially shipped
to Kansas. There are no other allegations of Kansas
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.
28 U.S.C. § 1391(b); see also Mohr v. Margolis,
Ainsworth & Kinlaw Consulting, Inc., 434 F.Supp.2d
1051, 1058 (D. Kan. 2006). Whether to dismiss a case for
improper venue “lies within the sound discretion of the
district court.” Pierce v. Shorty Small's of
Branson Inc., 137 F.3d 1190, 1191 (10th Cir. 1998)
(citations omitted). But the court gives deference to the
plaintiff's choice of forum. M.K.C. Equip. Co. v.
M.A.I.L. Code, 843 F.Supp. 679, 683 (D. Kan. 1994).
claims that venue is proper under either § 1391(b)(2) or
(b)(3). But subsection (b)(3) does not apply because there is
another district in which an action may be brought-in
Pennsylvania, where defendant's principal place of
business is. This leaves subsection (b)(2). This subsection
does not require that a court determine which judicial
district has the most substantial connection.
Instead, venue may be proper in multiple districts, so long
as a substantial part of the events or omissions giving rise
to the case occurred in those districts. Employers Mut.
Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1165-66
(10th Cir. 2010). When evaluating venue, a district court
must “examine the nature of the plaintiff's claims
and the acts or omissions underlying those claims, ”
and “whether substantial ‘events material to
those claims occurred' in the forum district.”
Id. at 1166 (citations omitted).
on plaintiff's allegations, the court does not conclude
that the District of Kansas is “a judicial district in
which a substantial part of the events or omissions giving
rise to the claim occurred.” See 28 U.S.C.
§ 1391(b)(2). The aerial boom lift was purchased by a
company with a Missouri address (Midwest Aerials &
Equip., Inc., or “Midwest”) but was shipped to
Midwest at a Kansas address. It apparently was in Kansas for
some amount of time before it was transferred to Missouri.
The incident occurred in Missouri, thirteen years after
defendant shipped the aerial boom lift to Kansas. And
Pennsylvania is where the aerial boom lift was designed and
manufactured. Plaintiff's claims center on the incident
and any defects in the product-not on any contract or
warranty that would involve the temporary housing of the
aerial boom lift in Kansas. This court does not find that
delivery of the lift to Kansas is material to the incident
thirteen years later, in Missouri, that is the subject of
this case. This case involves strict liability, negligence,
and wrongful death claims about a Missouri incident based on
a lift that was designed and manufactured in Pennsylvania.
Venue is not proper in Kansas.
court, in the interest of justice, may cure improper venue by
transferring the case to “any district or division in
which it could have been brought.” 28 U.S.C. §
1406(a); Elec. Realty Assocs., L.P. v. Paramount Pictures
Corp., 935 F.Supp. 1172, 1177 (D. Kan. 1996). Even when
venue is proper, however, federal courts have the option to
transfer cases: “For the convenience of parties and
witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division
where it might have been brought.” 28 U.S.C. §
1404(a); see also Black & Veatch Constr.,
Inc. v. ABB Power Generation, 123 F.Supp.2d 569, 580
(D. Kan. 2000). Courts determine whether to transfer a case
on “an individualized, case-by-case consideration of
convenience and fairness.” Chrysler Credit Corp. v.
Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir.
1991) (citation and internal quotation marks omitted). To
evaluate whether the interests of justice warrant transfer,
courts consider: (1) whether a newly-filed action would be
time-barred; (2) the likely merits of the claims; and (3)
plaintiff's good faith in filing the original action.
Trujillo v. Williams, 465 F.3d 1210, 1222 (10th Cir.
has only asked the court for dismissal-not transfer. But
defendant acknowledges that “a proper venue exists
under 28 U.S.C. § 1391(b)(1), namely the Middle District
of Pennsylvania.” (Doc. 13, at 2.) This court is
inclined to transfer the case instead of dismissing it, based
on the factors outlined in Trujillo. First, it is
not immediately clear to the court, but it appears that
plaintiffs could have a timeliness issue if required to
refile their case, unless a tolling provision applies.
Second, the court is not in a position to make a full
determination on the merits of the case, but plaintiffs'
allegations do not appear frivolous. And third, there is no
indication that plaintiffs filed this action in bad faith.
Rather, the order of the Eastern District of ...