United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
matter is before the Court on the Motion to Dismiss, ECF No.
11, filed by Defendant Columbus Westgate, LLC (Westgate); the
Motion to Dismiss, ECF No. 23, filed by Defendant Thermo
Manufacturing Systems, LLC (Thermo); and the Motion to
Dismiss, ECF No. 26, filed by Defendant Yorkshire Federal,
Inc. (Yorkshire). For the reasons stated below, the Motion to
Dismiss filed by Westgate will be granted and the Motions to
Dismiss filed by Thermo and Yorkshire will be denied.
2, 2015, Plaintiff Kenneth Nielsen, purchased a commercial
building in Columbus, Nebraska, from Westgate, a Missouri
limited liability company. Before it sold the building,
Westgate hired Yorkshire, a Texas corporation, to perform
maintenance and repair work on the roof in 2010 and on
multiple occasions in 2014. In connection with the 2014
repair work, Yorkshire used “fluid applied reflective
roofing membrane systems” manufactured by Thermo, an
Arizona limited liability company. Comp., ECF No. 1-1, Page
ID 8. Thermo issued Westgate a ten-year “material and
labor warranty” in 2014 and the warranty was
“transferred” to Nielsen on July 17, 2015.
Id. at Page ID 9. In November of 2015, the
building's tenant, Hobby Lobby, complained to Nielsen
about water intrusion into the store's retail space.
Accordingly, Nielsen hired another roofing contractor to
repair the building's roof.
filed his Complaint, ECF No. 1-1, in the District Court of
Platte County, Nebraska, against Westgate, Yorkshire, and
Thermo Manufacturing. He asserted claims against Westgate for
negligent breach of contract, fraudulent misrepresentation,
negligent misrepresentation, fraudulent concealment, and
negligent concealment. He asserted claims against Yorkshire
and Thermo Manufacturing for negligence and breach of
warranty. On December 8, 2017, Westgate removed the case to
this Court, ECF No. 1, and both Thermo and Yorkshire
consented to the removal, ECF Nos. 4 & 8.
argues that Nielsen's Complaint fails to state a claim
upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
Thermo and Yorkshire argue the claims against them should be
dismissed under Fed.R.Civ.P. 12(b)(3) or 12(b)(6) because the
District of Nebraska is an improper venue. The Court first
will address whether the claims against Thermo and Yorkshire
should be dismissed for improper venue. It will then address
Westgate's Motion to Dismiss for failure to state a claim
upon which relief can be granted.
Improper Venue-Fed. R. Civ. P. 12(b)(3)
Rule of Civil Procedure 12(b)(3) permits a party to raise the
defense of “improper venue” by motion.
“[V]enue of all civil actions brought in district
courts of the United States” is governed by 28 U.S.C.
§ 1391, which states:
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.
28 U.S.C. § 1391(b).
is proper in “any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action” only “if there is no
district in which an action may otherwise be brought as
provided in” § 1391. Therefore, the fact that a
defendant is subject to personal jurisdiction in Nebraska
does not make a Nebraska court a proper venue unless there is
no other district in which this action may have been brought.
This means that the Court must determine whether venue is
appropriate under subsections (1) and (2) of § 1391(b)
before looking to subsection (3) to determine if venue is
respect to § 1391(b)(1), the venue statute provides that
a “natural person . . . [is] deemed to reside in the
judicial district in which that person is domiciled, ”
and “an entity with the capacity to sue and be sued . .
. [is] deemed to reside, if a defendant, in any judicial
district in which such defendant is subject to the
court's personal jurisdiction with respect to the civil
action in question.” Id. § 1391(c)(1),
(2). “If natural persons are involved, it is their
residence at the time the action is commenced, not when the
claim arose, that is decisive in ascertaining the propriety
of federal venue.” 14D Charles Alan Wright et al.,
Federal Practice and Procedure § 3805 (3d ed.
2012). The time the claim arose is decisive in ascertaining
the propriety of venue when an entity is involved. Great
Am. Ins. Co. v. Louis Lesser Enters., Inc., 353 F.2d
997, 1001 (8th Cir. 1965).
respect to § 1391(b)(2), “[t]he statute does not
posit a single appropriate district for venue; venue may be
proper in any of a number of districts, provided only that a
substantial part of the events giving rise to the claim
occurred there, ” Woodke v. Dahm, 70 F.3d 983,
985 (8th Cir. 1995) (citing Setco Ents. Corp. v.
Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994)), or that
“a substantial part of property that is the subject of
the action is situated” there. 28 U.S.C. §
1391(b)(2). The question is not which is the
“best” venue, but “whether the district the
plaintiff chose had a substantial connection to the claim,
whether or not other forums had greater contacts.”
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558,
563 (8th Cir. 2003) (citing Setco, 19 F.3d at 1281).
Failure to State a Claim-Fed. R. Civ. P. 12(b)(6)
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1114 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial