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BIENER NISSAN, INC. v. NISSAN NORTH AMERICA

United States District Court, S.D. New York


February 24, 2004.

BIENER NISSAN, INC. and JOHNSON NISSAN, INC., Plaintiffs,
v.
NISSAN NORTH AMERICA, INC., Defendant

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

BACKROUND

Plaintiffs Beiner Nissan, Inc. and Johnson Nissan, Inc. ("Plaintiffs") filed a complaint in this Court on March 26, 2003 ("Complaint"). Plaintiffs allege, inter alia, that Defendant, Nissan North America, Inc., did not fully reimburse them for certain repairs they made, pursuant to warranty contracts between Plaintiffs and Defendant, at the rates purportedly required by the New York Franchise Motor Vehicle Dealer Act, N.Y. Vehicle & Traffic Law ("VTL"), § 460 et seq.

  Defendant brought and served on Plaintiff a timely Motion to Dismiss or, in the Alternative, to Transfer Because of Improper Venue ("Motion"), dated August 29, 2003. Thereafter, on November 5, 2003, Defendant wrote to the Court, copying Plaintiffs' counsel, stating that no opposition papers had been filed. In fact, to date, Plaintiffs have not filed any opposition to Page 2 Defendant's motion.

  DISCUSSION

  In its Motion, Defendant argues that venue is not proper in the Southern District of New York and would be proper in the Northern or Eastern Districts> of New York. In fact, Plaintiff's Complaint details only events that transpired in the Northern and Eastern Districts>. Specifically, the Plaintiffs allege that they performed the services at issue at, transmitted the request for reimbursement from, and received the allegedly inadequate payments at, their respective dealerships, which are located in the Northern District (Johnson Nissan) and the Eastern District (Biener Nissan). (Compl. ¶¶ 1, 12, 20, 26-40).

  By contrast, Plaintiffs' Complaint alleges only in a conclusory fashion that venue was proper in this district, pursuant to 28 U.S.C. § 1391,*fn1 "because a substantial part of the events giving rise to the claim occurred in this District." (Compl. at ¶ 3). Indeed, as Defendant correctly points out, "[t]he Complaint does not describe a single event that actually occurred in the Southern District of New York." (Mot. at 4).*fn2 Page 3

  When confronted with a case in which venue is not proper, a court "shall dismiss, or, if it be in the interest of justice, transfer the case to any district or division in which it could have been brought. " 28 U.S.C. § 1406. Accordingly, the Court grants Defendant's Motion to the extent that it requests a transfer of this case to a proper venue, pursuant to 28 U.S.C. § 1406(a).

  The Clerk of the Court is directed to transfer this case to the Northern District of New York.

  SO ORDERED.


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