The opinion of the court was delivered by: Sifton, Senior Judge.
MEMORANDUM OPINION AND ORDER
This is an action arising out of the allegation by plaintiff M.N.H. Exports ("MNH") that defendants B.A.T. Wear, Inc. ("BAT Wear") and Asif Rajput ("Rajput") failed to pay for or accept certain apparel products produced and delivered by plaintiff. Presently before the Court are defendant BAT Wear's motion to dismiss for improper venue or, in the alternative, for transfer to the District of New Jersey and defendant Rajput's motion to dismiss for improper service. For the reasons set forth below, the case is ordered transferred to the United States District Court for the District of New Jersey, and defendant Rajput's motion to dismiss is denied without prejudice.
The following facts are drawn from the complaint and the parties' submissions in connection with the motions. Disputes are noted.
Plaintiff MNH Exports is a Pakistani corporation, and defendant BAT Wear is a New Jersey corporation. In the complaint, plaintiff alleges that during all relevant times, defendant Rajput acted "individually or on behalf of defendant BAT."
In June 2005, plaintiff MNH filed its complaint against defendants BAT Wear and Rajput in New York State Supreme Court. BAT Wear acknowledged that it received service on August 9, 2005. MNH attempted to serve Rajput by delivering a copy of the summons and complaint on August 2, 2005, to Jerry Ellner, President of Synergy Corp., Rajput's actual place of business located at 715 South Avenue East, Cranford, New Jersey. BAT Wear alleges that Rajput resides in New Jersey; however, Rajput states that he does not reside in the United States, and that his only residence is in Pakistan.
Rajput filed an answer to the complaint on August 30, 2005. Thereafter, defendant BAT Wear moved to dismiss the case for improper venue, arguing that BAT Wear and Rajput both reside in New Jersey, MNH resides in Pakistan, and the events complained of occurred in New Jersey. Accordingly, BAT Wear argues, venue is proper in the District of New Jersey, and the case must either be dismissed or transferred.
Defendant Rajput also filed a motion to dismiss the case as to himself, arguing that he was never properly served with the summons and complaint. In the alternative, he argues that the case should be dismissed because this Court does not, in any event, have personal or long-arm jurisdiction over him.
Plaintiff opposes both defendants' motions, arguing that Rajput was properly served, and that he resides in New York. For the reasons that follow, the case is ordered transferred to the District of New Jersey, and Rajput's motion to dismiss is denied without prejudice to renewal before the District Court in New Jersey.
Defendant BAT Wear's Motion to Dismiss
Defendant BAT Wear argues that the complaint must be dismissed because of improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3).*fn1 Defendant BAT Wear argues in the alternative that if the complaint is not dismissed, the case should be transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404(a).
When considering a motion to dismiss for improper venue pursuant to Rule 12(b)(3), the Court must accept the facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Central National-Gottesman, Inc. v. M.V. "GERTRUDE OLDENDORF", 204 F.Supp.2d 675, 677 (S.D.N.Y.2002) (citation omitted). See also Fed.R.Civ.P. 12(b)(3). In making such a determination, courts may consider materials outside of the pleadings. See Brennan v. Phyto-Riker Pharmaceuticals, Ltd., 2002 WL 1349742, at *1 n. 2 (S.D.N.Y.2002). Plaintiff bears the burden of proving that venue is proper. See Central National-Gottesman, 204 F.Supp.2d at 677 (citation omitted). Even if the Court decides that venue is improper, the court still retains discretion to decline to dismiss the case in favor of a transfer to any district where the case could initially have been brought. See Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993).
Venue is governed by 28 U.S.C. § 1391(a) in cases where the court's subject matter jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Pursuant to § ...