United States District Court, D. Arizona
Honorable Steven P. Logan United States District Judge.
before the Court is Defendant's Motion to Dismiss, Stay
or Transfer Under the “First-Filed” Rule, to
Dismiss for Improper Venue Under Rule 12(b)(3), and/or
Transfer Under 28 U.S.C. § 1404 (the
“Motion”) (Doc. 13). The Motion was fully briefed
on February 26, 2019. (Docs. 18, 19) The Court's ruling
is as follows.
Plaintiff initiated this action alleging causes of action
against its former employee, the Defendant, for breach of a
non-competition agreement. (Doc. 1) During the
Defendant's employment with the Plaintiff, he acted as
the Regional Sales Manager for the western region, overseeing
salespeople in California, Nevada, Arizona, and many other
states. (Doc. 13 at 3) On November 23, 2018, the Defendant
resigned from his position with the Plaintiff and started a
new position with a competitor of the Plaintiff. (Doc. 13 at
4) The Defendant alleges that he has been a California
resident his entire life, even though he owns vacation
properties in Arizona. (Doc. 13 at 10)
December 11, 2018, the Plaintiff initiated this action in the
District of Arizona alleging that the Defendant was a
resident of Arizona during the time he participated in the
actions giving rise to this lawsuit. (Doc. 1; Doc. 18 at 10)
The Defendant moves to dismiss this case for improper venue
because he is not a resident of Arizona. (Doc. 13)
Motion to Dismiss for Improper Venue
Rule 12(b)(3) of the Federal Rules of Civil Procedure, a
party may move for dismissal of an action that has been
brought in an improper venue. 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.” 28 U.S.C. § 1406(a). The Defendant
seeks dismissal of this case, asserting that venue is not
proper in the District of Arizona. An action may be brought
in any venue 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).
defendant challenges venue, the plaintiff bears the burden of
establishing that venue is proper. Piedmont Label Co. v.
Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.
1979). When considering a motion to dismiss pursuant to Rule
12(b)(3), a court need not accept the pleadings as true and
may consider facts outside of the pleadings. See Murphy
v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th
Defendant argues that venue is improper in this district
because he does not reside in the District of Arizona.
Pursuant to 28 U.S.C. §1391, a person resides in the
judicial district in which he or she is domiciled. 28 U.S.C.
§ 1391. A person is domiciled in a location where he or
she has established a fixed habitation or abode in a
particular place and intends to remain there permanently or
indefinitely. Lew v. Moss, 797 F.2d 747, 749-50 (9th
Cir. 1986). It is well settled that domicile is determined at
the time the lawsuit is initiated. Id. at 750.
Defendant argues that he was domiciled in California at the
time this lawsuit was filed, as evidenced by his primary
residence in Brea, California, along with his primary bank
account and state identification maintained in California.
(Doc. 13 at 10) In response, the Plaintiff argues that the
Defendant is domiciled in Arizona because the Defendant owns
real estate in Arizona and the Defendant's tax forms,
presumably completed while he was employed by the Plaintiff,
listed a home address in Arizona. (Doc. 18 at 2) The Court
finds that the Defendant was domiciled in California at the
time the lawsuit was filed. The Defendant argues, and the
Plaintiff does not dispute, that at the time that this action
was initiated, the Defendant resided in California. (Doc. 18
at 3) Furthermore, the Court finds that all of the
Plaintiff's factual allegations regarding the
Defendant's residence in Arizona rely on past indications
of domicile related to the Defendants “8 year period
of employment” with the Plaintiff. However, it is
undisputed that the Defendant resigned from his position with
the Plaintiff and started new employment, which required him
to relocate to California, prior to the filing of this
lawsuit. (Doc. 18 at 1; Doc. 13 at 4) Accordingly, the Court
finds that the Defendant was domiciled in California for the
purpose of determining the proper venue for this case.
Defendant also argues that venue is improper in this district
because “a substantial part of the events or omissions
giving rise to the claim” did not occur in the District
of Arizona. 28 U.S.C. § 1391(b)(2); (Doc. 13 at 9). The
Court notes that the complaint states that venue is proper
“because Defendant resides in this district and is
subject to this Court's personal jurisdiction” and
does not mention that a substantial part of the events giving
rise to the claim occurred in the District of Arizona. (Doc.
1 at 2) The Plaintiff does not fully address this issue in
its response to the Motion. Therefore, the Court finds that
venue is not proper in the District of Arizona on this basis.
Finally, the Defendant argues that venue is proper in the
Central District of California; thus, 28 U.S.C. §
1391(b)(3) does not allow venue to be proper in the District
of Arizona. The Court finds that both parties' statements
agreeing the Defendant currently resides in the Central
District of California is sufficient to demonstrate that
venue would be proper in that district. (Doc. 13 at 2; Doc.
18 at 9) Therefore, the Court finds that venue is improper in
the District of Arizona, and the Motion must be granted.
IT IS ORDERED that the Motion to Dismiss is
granted, and the Clerk of Court shall
transfer this case ...