close the `venue gaps' that existed under earlier versions of the
statute in situations in which . . . multiple defendants who
contributed to a single injurious act, could not be sued jointly
because they resided in different districts." Id. at 184 n. 17,
99 S.Ct. 2710. According to the Court, "[s]o long as the plain
language of the statute does not open the severe type of `venue
gap' that the amendment giving plaintiffs the right to proceed in
the district where the claim arose was designed to close, there
is no reason to read it more broadly on behalf of plaintiffs."
Id. at 184, 99 S.Ct. 2710.
District courts in this Circuit have relied on the history of
the statute and the language from Leroy for the conclusion that
suits may be brought in the district where a substantial part of
the events occurred only if all the defendants do not reside in
the same state. In my opinion, this conclusion is inconsistent
with the plain language of the statute as well as with its
The plain language of § 1391(a) indicates that venue is proper
either in a district within the state where all the defendants
reside or in a district in which a substantial part of the
events or omissions giving rise to the claim occurred.
Additionally, the legislative history of § 1391 states that "H.R.
7382 amends subsections 1391(a) and 1391(b) of tile 28, United
States Code, to enlarge venue authority so as to authorize any
civil action to be brought in the judicial district where the
claim arose. Under [subsection 1391(a)], as amended, a civil
action wherein jurisdiction is founded only on diversity of
citizenship, unless otherwise provided by law, may be brought in
the judicial district in which the claim arose, as well as in the
judicial districts where all plaintiffs or defendants reside."
Committee Note to 1966 Amendment to Section 1391 (emphasis
added), reprinted in 17 Moore's Federal Practice § 110 App.
05 (3d ed. 1998). There is simply nothing in the language of
the statute or its legislative history to suggest that the
statute is to be read disjunctively or hierarchically. If
Congress had, in fact, intended that result, it certainly could
have drafted the language of the statute to that end.
I, therefore, adopt the reasoning of those courts that have
held that the language of the statute — which clearly provides
alternative bases for venue — controls. See, e.g., Northern
Kentucky Welfare Rights Ass'n v. Wilkinson, 1991 WL 86267, at *3
(6th Cir. 1991) ("[T]he statute is phrased in the alternative.");
Market Transition Facility v. Twena, 941 F. Supp. 462, 465
(D.N.J. 1996) ("[T]he plain language of § 1391(a) indicates that
venue in diversity cases is proper, regardless of circumstances,
in either a district within the state where all defendants reside
or in a district where a substantial part of the events or
omissions giving rise to the claim occurred. There is nothing on
the face of the statute to support [defendant's] interpretation
that venue must be in a district where a defendant resides, when
all defendants reside in the same state."); School Dist. of
Philadelphia, 877 F. Supp. at 249 ("Accordingly, we find that
even though venue would be appropriate in the Middle District
based on (b)(1), it can also be proper here if the requirements
of (b)(2) are met."); Merchants Nat'l Bank v. Safrabank,
776 F. Supp. 538, 541 (D.Kan. 1991) ("The defendants' argument fails
to give effect to the plain language of the statute. . . . We
believe that the language of the statute must control and it
provides for alternative bases of venue. Accordingly, we reject
the defendants' argument that venue is improper here because all
of the defendants reside in the Central District of
I also note that this "alternative" approach has been approved
by a leading commentator. According to Wright, Miller & Cooper,
"[t]he provision for residential venue, in paragraph (1) . . .,
and the provision for transactional venue, in paragraph (2) . .
., are in the alternative. Venue is proper if either one of those
conditions is met." 15 Charles Alan Wright, Arthur R. Miller and
Edward H. Cooper, Federal Practice and Procedure § 3804, at 16
(2d ed. Supp. 1998). This same commentator stated further that it
is "clearer than ever that [§ 1391(a)(2)] may be used in any case
and is not limited to cases in which defendants could not be sued
jointly because they resided in different districts." Id. §
3806, at 17 (2d ed. Supp. 1998).
I find, therefore, that both (a)(1) and (a)(2) provide
alternative bases for venue. Accordingly, although venue would be
proper under (a)(1) in the Middle District of Pennsylvania
because all the defendants reside there, venue also would be
proper in this District if a substantial part of the events
giving rise to plaintiffs' claim occurred here. I turn now to
The standard set forth in § 1391(a)(2) does not require that
plaintiffs establish that the Western District of New York has
"the most substantial contacts to the dispute; rather it is
sufficient that a substantial part of the events occurred [here],
even if a greater part of the events occurred elsewhere."
Neufeld v. Neufeld, 910 F. Supp. 977, 986 (S.D.N.Y. 1996)
(quoting Leucadia Nat'l Corp. v. FPL Group Capital, Inc., 1993
WL 464691, at *6 (S.D.N.Y. Nov.9, 1993)). As Professor Seigel
explains, "[t]he fact that substantial activities took place in
district B does not disqualify district A as proper venue as long
as `substantial' activities took place in A, too. Indeed,
district A should not be disqualified even if it is shown that
the activities in B were more substantial, or even the most
substantial." 28 U.S.C.A. § 1391, David D. Seigel, Commentary on
1988 and 1990 Revisions of Section 1391, at 9.
Courts in this Circuit have held that the substantial
activities' standard "may be satisfied by a communication
transmitted to or from the district in which the cause of action
was filed, given a sufficient relationship between the
communication and the cause of action." Constitution Reinsurance
Corp. v. Stonewall Ins. Co., 872 F. Supp. 1247, 1249 (S.D.N Y
1995) (quoting Sacody Technologies, Inc. v. Avant, Inc.,
862 F. Supp. 1152, 1157 (S.D.N.Y. 1994)).
I find that plaintiffs have alleged sufficient facts to
establish that a substantial part of the events giving rise to
their claim occurred within this District. There is no dispute
that defendants' dealings with plaintiffs regarding the letter of
intent occurred by telephone calls, facsimile transmissions, and
correspondence between defendants in Pennsylvania and plaintiffs
in New York. Further, Gregory prepared and executed the letter of
intent in this District and transmitted it to defendants in
Pennsylvania. Defendants then transmitted the letter back to
plaintiffs in this District. Additionally, any alleged breach of
the letter of intent by plaintiffs occurred in this District.
Some important events did occur outside this District in the
Middle District of Pennsylvania. For example, a meeting did take
place there between Gregory and the Eckes concerning a facility
to be constructed in Pennsylvania. "However, as referenced above,
a plaintiff does not have to prove that his or her chosen venue
is the best forum for the action; a plaintiff need only
demonstrate that the choice is a permissible one." Leucadia
Nat'l Corp., 1993 WL 464691, at *6. I find that plaintiffs have
done so. Accordingly, defendants' motion to dismiss plaintiffs'
complaint for improper venue pursuant to § 1406(a) is denied.
B. Defendants' Motion to Transfer Pursuant to
28 U.S.C. § 1404(a)
Defendants also move, in the alternative, to transfer this
action to the Middle District of Pennsylvania pursuant to §
1404(a). Section 1404(a) permits a district court to transfer an
action that is otherwise properly venued to another district
where it might have been brought "[f]or the convenience of
parties and witnesses, in the interest of justice."
A defendant moving for a change of venue must make out a strong
case for transfer. Cerasoli v. Xomed, Inc., 952 F. Supp. 152,
154 (W.D.N.Y. 1997). "To prevail on the motion, defendant must
make a `clear showing' that the litigation in the proposed
transferee district would be more convenient and would better
serve the interests of justice." Id. at 155. I find that
defendants have not made any showing in their motion papers why
this case should be transferred. Accordingly, defendants' motion
to transfer this action pursuant to § 1404 is denied.
For the foregoing reasons, defendants' motion to dismiss for
improper venue or, in the alternative, to transfer the action to
District of Pennsylvania (Docket # 10) is denied.
IT IS SO ORDERED.
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