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Andrew Nilon v. Natural-Immunogenics Corp

July 12, 2012

ANDREW NILON,
PLAINTIFF,
v.
NATURAL-IMMUNOGENICS CORP,
DEFENDANTS.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING MOTION TO DISMISS OR TO TRANSFER TO THE SOUTHERN DISTRICT OF FLORIDA [doc. #3]

On April 23, 2012, Defendant Natural-Immunogenics, Corp. ("Defendant") filed a motion to dismiss based on improper venue, or alternatively, to transfer the action to the Southern District of Florida. [Doc. #3.] The motion has been fully briefed.

The Court found this motion suitable for determination on the papers submitted and without oral argument. [Doc. #6.] For the following reasons, the Court DENIES Defendant's motion to dismiss or to transfer the action to the Southern District of Florida.

I. BACKGROUND

Plaintiff is a resident of California. (Complaint ¶ 5.) Defendant is a Florida corporation with its principle place of business in Pompano Beach, Florida. (Def.'s Motion 3:6-7.) Defendant manufactures, markets, and sells the "Sovereign Silver" line of products as colloidal silver hydrosol dietary supplement. (Complaint ¶ 1.)

Plaintiff alleges that Defendant advertised its "Sovereign Silver" products to have the ability to support consumers' immune systems. (Complaint ¶ 2.) He relied on Defendant's representations regarding their product when he purchased "Sovereign Silver" in California. (Complaint ¶ 5.) "Sovereign Silver" did not provide Plaintiff with the immune support that Defendant had advertised. (Complaint ¶ 13.) Plaintiff alleges that he would not have purchased "Sovereign Silver" but for this representation. (Complaint ¶ 15.)

On March 5, 2012, Plaintiff initiated this action in the Superior Court of the State of California, County of San Diego. [Doc. #1.] In his Complaint, Plaintiff alleges three causes of action: (1) Violation of the Consumers Legal Remedies Act (Cal. Civ. Code §1750); (2) Violation of California's False Advertising Law (Cal. Bus. & Prof. Code §17500); and (3) Unlawful, Fraudulent & Unfair Business Practices (Cal. Bus. & Prof. Code §17200). On April 16, 2012, Defendants removed the action to this Court. [Doc. #1.]

Defendants move to dismiss for improper venue pursuant to Rule 12(b)(3), or alternatively, to transfer this action to the United States District Court for Southern District of Florida under 28 U.S.C. § 1404(a). [Doc. #3.] Plaintiff opposes the motion.

II. DISCUSSION*fn1

A. Motion to Dismiss Based on Improper Venue

Under Section 1391(b) of Title 28 of the United States Code, 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.

A defendant may raise the defense of improper venue by way of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(3). If the Court determines venue is improper, it may dismiss the case, or if it is in the interest of justice, the Court may transfer the case to any other district in which it could have been brought. 28 U.S.C. § 1406(a); Dist. No. 1, Pac. Coast Dist. v. Alaska, 682 F.2d 797, 799 n.3 (9th Cir. 1982). Ultimately, the decision whether to dismiss or transfer rests in the Court's sound discretion. See King v. Russell, 963 F.2d 1301, 1304-05 (9th Cir. 1992).

Defendant argues that venue is improper here because Plaintiff has failed to plead any facts showing that the alleged acts took place in California or that Defendant conducted business in California. (Def's Motion 5:26-28.) Plaintiff claims that venue is proper because Defendant sells "Sovereign Silver" in California and Plaintiff purchased the product in California. (Complaint ΒΆ 5.) The Court concludes that venue is proper because the alleged events that led Plaintiff to purchase the product (i.e., Defendant's alleged false advertising) took place in California. The transaction ...


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