Venue Transfer Denied; Dismissal Affirmed No General Personal or Specific Jurisdiction Convenience of Counsel Invalid
Seville v. Maersk Line, Ltd., 2022 U.S. App. LEXIS 31953 *; __ F.4th __; 2022 WL 1707670 (5th Cir. Nov. 18, 2022)
A court generally is required to dismiss a case when the venue is improper but may “in the interest of justice” transfer a case to a proper venue pursuant to 28 U.S.C. § 1406(a). An important factor in determining whether to dismiss or transfer is the reason for filing in the improper venue. If there is a reasonable belief that the initial venue is proper, then transfer is the usual remedy. On the other hand, if it is reasonably foreseeable that the venue is improper, dismissal is more usually granted. The claimant bears the burden of proof.
Peter Wojcikowsk was employed as a seaman by Maersk Line and injured on October 28, 2017 while serving on a vessel in Bahrain and returned to the U.S. for treatment and shortly after committed suicide.1 The personal representative filed suit in the U.S. District Court for the Eastern District of Louisiana on October 6, 2020. Maersk filed a Motion to Dismiss on the basis of improper venue2 and asserted that it is not amenable to service of process as a Delaware corporation with its principal place of business in Virginia and there is no connection between the accident and the choice of venue.3
The appellate court agreed that nothing in the complaint alleged facts that makes Maersk subject to general jurisdiction in Louisiana4 nor were there any allegations that the defendant’s forum related activities make it subject to specific jurisdiction, either.5 At oral argument, the claimant’s counsel admitted that the only connection is that counsel for the claimant practices in the Eastern District of Louisiana.6
An error in venue may be excused if counsel could not have reasonably anticipated a venue problem.7 It is “’not in the interest of justice to allow [§ 1406] to be used to aid a non-diligent plaintiff who knowingly files a case in the wrong district.’"8
The panel expressed both concern and surprise over counsel’s statements to rationalize the selection of venue which also violate Rule 11.9 The dismissal for lack of personal jurisdiction was affirmed.
1 2022 U.S. App. LEXIS 31953 at *1.
2 Id. at *2
3 Id. at *6
4 Id. *8
5 Id.
6 Id. at *9
7 Id. at *7
8 Id. at *11
9 Id., citing Dubin P. United States, 380 F.2d 813, 816 n.5 (5th Cir. 1967).
