ORDER DENYING DEFENDANT ATLAS LOGISTICS GROUP RETAIL SERVICES (PHOENIX) LLC'S MOTION TO DISMISS FOR IMPROPER VENUE AND GRANTING MOTION TO TRANSFER
Defendant, Atlas Logistics Group Retail Services (Phoenix), LLC (hereinafter referred to as "Atlas") has filed a motion to dismiss the case of the Plaintiff, Julio Del Toro (hereinafter referred to as "Plaintiff") pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(3), or in the alternative, to transfer the action to the United States District Court for the District of Arizona under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). For the reasons discussed below, the motion to dismiss under Rules 12(b)(1) and 12(b)(3) shall be denied and the case transferred to the United States District Court for the District of Arizona under 28 U.S.C. § 1406(a).
II. FACTS AND PROCEDURAL BACKGROUND
Plaintiff brings this lawsuit against Atlas, The Kroger Co. (hereinafter referred to as "Kroger"), and Fry's Food Stores of Arizona (hereinafter referred to as "Fry's")(hereinafter all parties referred to as "Defendants"). Plaintiff alleges that on September 20, 2012, he was injured in a forklift accident as a result of the Defendants' negligence, and suffered severe permanent injuries, including the amputation of a foot. Plaintiff, a resident of California at the time of the alleged accident, as well as at the time of the filing of this action, was hired in June 2010 by RoadLink Service, LLC (hereinafter referred to as "RoadLink") and assigned to work within California. In September 2010, Plaintiff was asked by RoadLink to provide temporary employment services in Arizona. Approximately two weeks later, the accident occurred while he was working in that State.
The location of the Arizona facility where the alleged accident occurred was owned, controlled, and maintained by Kroger, an Ohio corporation with its principal place of business in the State of Ohio, and conducting business within the State of Arizona. Atlas is a third-party company who is responsible for providing services and maintenance for the operation of the Arizona facility where the alleged accident occurred. Atlas and Fry's are both Arizona corporations with their principal places of business in Arizona.
On November 2, 2012, Defendant Atlas filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(3), or in the alternative, to transfer the action to the United States District Court for the District of Arizona under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). Defendants Kroger and Fry's filed non-opposition. Plaintiff opposes dismissal under Rules 12(b)(1) and 12(b)(3), and requests the Court to transfer this matter if venue is found to be improper.
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows for a motion to dismiss based on lack of subject matter jurisdiction. See Fed. R. Civ. Pro. 12(b)(1). It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978). A Rule 12(b)(1) motion may be either facial, where the inquiry is confined to the allegations in the complaint, or factual, where the court is permitted to look beyond the complaint. Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Fed. R. Civ. P. 8(a)(1). The pleading must show "affirmatively and distinctly the existence of whatever is essential to federal jurisdiction, and if [it] does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Tosco Corp. v. Communities For A Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). Since subject matter jurisdiction must be affirmatively alleged, courts will not infer allegations supporting federal jurisdiction. See Watson v. Chessman, 362 F.Supp.2d 1190, 1194 (S. D. Cal. 2005); see also Tosco Corp., 236 F.3d at 499; Century Southwest Cable Television, Inc. v. CIIF Assocs., 33 F.3d 1068, 1071 (9th Cir. 1994). "The jurisdiction of the court depends upon the state of things at the time of the action brought." Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570, 124 S.Ct. 1920, 158 L.Ed. 2d 866 (2004) (citing Mollan v. Torrance, 9 Wheat. 537, 539, 6 L.Ed. 154 (1824)). This time-of-filing rule . . . measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing--whether the challenge be brought shortly after filing, after the trial, or even for the first time on appeal. Grupo Dataflux at 570-71.
A defendant may raise a Rule 12(b)(3) motion to dismiss for improper venue in its first responsive pleading or by a separate pre-answer motion. Fed. R. Civ. P. 12(b)(3). Title 28 U.S.C. § 1391 is the general code section governing venue. "A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C § 1391(b).
Once the defendant challenges venue, the plaintiff bears the burden of establishing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). When considering a Rule 12(b)(3) motion to dismiss, the pleadings need not be accepted as true, and the court "may consider facts outside the pleadings." Richardson v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir. 1998). The trial court must "draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party." Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138-39 (9th Cir. 2003). If the court determines that venue is improper, it may dismiss the case, or, if it is in the interest of justice, transfer it to any district in which it properly could have been brought. 28 U.S.C. § 1406(a). Even if the court determines that venue is proper, it may still transfer for the convenience of parties and witnesses, in the interest of justice. 28 U.S.C. § 1404(a). In either case, the decision to transfer rests in the discretion of the court. 28 U.S.C. § 1404(b); King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992) (holding that the trial court did not abuse its discretion under 28 U.S.C. § 1406(a) when it chose to dismiss, and not transfer, the action because of improper venue).
A. Subject Matter Jurisdiction
The court finds that it has jurisdiction over this case pursuant to 28 U.S.C. § 1332. Under 28 U.S.C. § 1332, a district court has jurisdiction where the matter in controversy exceeds the sum or value of $75,000 exclusive of ...