United States District Court, S.D. New York
February 24, 2004.
BIENER NISSAN, INC. and JOHNSON NISSAN, INC., Plaintiffs,
NISSAN NORTH AMERICA, INC., Defendant
The opinion of the court was delivered by: BARBARA JONES, District Judge
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
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
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.