United States District Court, W.D. Missouri, Southern Division
ROSEANN A. KETCHMARK, JUDGE
the Court is Defendant Schindler Elevator Corporation
(“Schindler”)'s Motion to Dismiss Complaint
for Improper Venue or, in the Alternative, to Transfer Venue
to the United States District Court for the District of
Colorado. (Doc. 8.) Plaintiff Steadfast Insurance Company
(“Steadfast”) opposes the motion. (Doc. 14.) For
the reasons set forth below, the motion is DENIED.
case involves a contract dispute related to a construction
project at a hotel in Westminster, Colorado (the
“project”). (Doc. 1 at ¶ 7.) Killian
Construction Co. (“Killian”) was the general
contractor for the project. (Id.) Steadfast issued
an insurance policy to Killian that insured the cost of
performance of the project. (Id. at ¶ 15.)
Schindler was a subcontractor on the project. (Id.
at ¶ 8.) Pursuant to the insurance policy, Steadfast
issued payments to Killian for costs allegedly incurred due
to Schindler's unjustified delays in construction.
(Id. at 16.) In this action, Steadfast, as assignee
and subrogee of Killian, is seeking damages from Schindler
for breach of contract, negligent misrepresentation,
equitable subrogation, equitable contribution, and unjust
enrichment. The subcontract agreement at issue contains a
forum selection clause requiring an action arising under the
agreement, with federal jurisdiction, to be brought in the
United States District Court for the Western District of
Missouri, Southern Division. (Doc. 1-2 at 5.)
is a Missouri corporation with a principal place of business
in Springfield, Missouri. (Id. at ¶ 3.)
Steadfast is a Delaware Corporation with a principal place of
business in Schaumburg, Illinois. (Id. at ¶ 1.)
Finally, Schindler is a Delaware Corporation registered as a
foreign corporation in Missouri and maintains a registered
agent in Missouri. (Id. at ¶ 4.)
Motion to Dismiss for Improper Venue
12(b)(3) of the Federal Rules of Civil Procedure allows a
party to move for a dismissal based upon improper venue.
Although there is a split in the circuits, the Eighth Circuit
has held that the defendant bears the burden of establishing
that venue is improper. Brigdon v. Slater, 100
F.Supp.2d 1162, 1164 (W.D. Mo. Apr. 16, 2000) (citing
United States v. Orshek, 164 F.2d 741, 742 (8th Cir.
1947)); see also Luebbert v. Emp'rs & Operating
Eng'rs Local 520 Pension Fund, No. 4:06CV01140 ERW,
2007 WL 1100455, at *2 (E.D. Mo. Apr. 10, 2007) (following
Brigdon); Spanier v. Am. Pop Corn Co., No.
C15-4071-MWB, 2016 WL 1465400, at *10 (N.D. Iowa Apr. 14,
2016) (reciting split in authority). Ordinarily, “when
ruling on a defendant's motion to dismiss, a judge must
accept as true all of the factual allegations contained in
the complaint.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 572 (2007)).
in civil actions is generally governed by 28 U.S.C. §
1391. That section states in relevant part:
(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;
(c) Residency. For all venue purposes -
(2) an entity with the capacity to sue and be sued in its
common name under applicable law, whether or not
incorporated, shall be deemed to reside, if a defendant, in
any judicial district in which such defendant is subject to
the court's personal ...