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Nationwide Agribusiness Insurance Company v. Adkison

United States District Court, N.D. Alabama, Middle Division

May 3, 2017

NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Plaintiff,
v.
STEVE ADKISON, Defendant.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE

         This is a civil action filed by the Plaintiff, Nationwide Agribusiness Insurance Company (“Nationwide”) against the Defendant, Steve Adkison. Nationwide seeks a declaration of its rights, pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., under an insurance policy it issued to Adkison. As noted in the Complaint:

Adkison has presented Nationwide with estimates for repair of alleged wind damage to one or more poultry houses, which said estimates exceed $75, 000.00. Nationwide contends that Adkison failed to comply with his post-loss obligations under the Policy, and that Adkison's failure to promptly notify it of the alleged damage was unreasonable as a matter of law. Nationwide further contends that Adkison failed to mitigate his alleged damages, and/or failed to prevent further damage after discovering initial damage, in contravention of his post-loss obligations under the Policy and/or Alabama law. Nationwide contends that it is therefore not responsible for the alleged loss.

(Doc. 1 at 1-2). The case comes before the Court on the Defendant's motion to dismiss for improper venue or, in the alternative, to transfer this case. (Doc. 8). For the reasons stated herein, the motion will be GRANTED. The Court, in its discretion will DISMISS this case WITHOUT PREJUDICE.

         28 U.S.C.A. § 1406

         Because the Defendant argues that venue is improper in this district, the Court must consult 28 U.S.C.A. § 1406(a), which provides that “[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.” 28 U.S.C.A. § 1406(a). By the terms of the statute, the Court must first determine whether venue is improper in this district. If so, then the court “shall dismiss” unless it is in the interest of justice to transfer the case to a district where it could have been brought.

         Venue Is Not Proper in the Northern District of Alabama

         Venue is appropriate 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.A. § 1391(b). There is no dispute that, under subsection (b)(1) of section 1391, venue is appropriate in the Middle District of Alabama.[1] Therefore, there is a district “in which [the] action may otherwise be brought, ” so subsection (b)(3), which only applies is there is no such district, is inapplicable.

         If venue is appropriate in the northern District of Alabama at all in this case, it can only be if this district is where “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.” 28 U.S.C.A. § 1391(b)(2). The Eleventh Circuit has noted:

This language was added in 1990, amending the former subsection 2 which provided for venue only in the single district “in which the claim arose.” Congress believed that the old phrase was “litigation-breeding, ” partly because it did not cover the situation “in which substantial parts of the underlying events have occurred in several districts.” See H.R. Report of the Committee on the Judiciary, Rep. No. 101-734, at 23 (1990). The old language was problematic because it was oftentimes difficult to pinpoint the single district in which a “claim arose.” Consider, for example, a breach-of-contract case with these facts: the agreement is executed in Oregon; the defendant fails to deliver goods to New York and California; and the defendant makes an anticipatory repudiation of the rest of the contract from its home office in Utah. Or consider a toxic tort case in which the defendant's factories in Colorado and Missouri pollute a river, causing injury to Arkansas and Louisiana citizens who ingest the water. If one had to pick a single district in which the tort or contract claim “arose, ” each scenario would require the district court, after extensive litigation, to pick a district in an arbitrary fashion.
The new language thus contemplates some cases in which venue will be proper in two or more districts. This does not mean, however, that the amended statute no longer emphasizes the importance of the place where the wrong has been committed. Rather, the statute merely allows for additional play in the venue joints, reducing the degree of arbitrariness in close cases. The statute's language is instructive: venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(a)(2) (emphasis added). Only the events that directly give rise to a claim are relevant. And of the places where the events have taken place, only those locations hosting a “substantial part” of the events are to be considered.

Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003).

         As Adkison has challenged venue under § 1406(a), Nationwide, the party that chose to institute this case in the Northern District of Alabama, now has the burden of showing that venue in this forum is proper. Pinson v. Rumsfeld, 192 F.App'x 811, 817 (11th Cir. 2006) (c ...


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