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Rowell Commins v. NES Rentals Holdings, Inc.

United States District Court, W.D. Kentucky, Louisville Division

August 14, 2017

SAMANTHA D. ROWELL COMMINS, Individually and as Next Friend, Natural Parent and Legal Guardian of N.C. and E.C., Minor Children, and as Personal Representative and Ancillary Administratrix of the Estate of Samuel Jack Commins, Deceased PLAINTIFFS
v.
NES RENTALS HOLDINGS, INC., DEFENDANTS

          MEMORANDUM OPINION & ORDER

          Greg N. Stivers, Judge United States District Court

         This matter is before the Court upon Defendants' Joint Motion to Transfer for Improper Venue (DN 19). For the reasons discussed below, the motion is DENIED.

         I. BACKGROUND

         This is a wrongful death and survival action sounding in products liability. Samuel Commins (“Commins”) was killed while operating a boom lift manufactured by Defendant Genie Industries, Inc. (“Genie”) which Commins' employer leased from Defendants NES Rentals Holdings, Inc. and NES Equipment Services Corporation d/b/a NES Rentals (collectively, “NES”) at its Louisville, Kentucky store. (Compl. ¶ 11, DN 1).[1] NES delivered the lift to a jobsite in Ghent, Kentucky. (Compl. ¶ 11). Commins died while operating the boom lift at the Ghent jobsite. (Compl. ¶¶ 12-15). Plaintiffs filed suit in this Court against NES and Genie, alleging that the boom lift's defective design, maintenance, warnings, and instructions caused Commins' death. (Compl. ¶¶ 18-29). Now, Defendants move the Court to transfer this action to the Eastern District of Kentucky, Frankfort Division, on the grounds that this district is an improper venue. Plaintiffs filed a response opposing transfer, Defendants replied, and the Court held oral argument. The matter stands ripe for decision.

         II. JURISDICTION

         The Court has jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1332(a)(1) because there is diversity of citizenship among the parties and the amount in controversy exceeds $75, 000, exclusive of interest and costs.

         III. DISCUSSION

         Plaintiffs argue that venue is proper in the Western District of Kentucky under 28 U.S.C. § 1391(b)(1) & (b)(2). Section 1391(b) provides, in relevant part:

A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(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 . . . .

28 U.S.C. § 1391(b)(1)-(2).[2]

         A. Section 1391(b)(1)

         Defendants argue that Plaintiffs waived any argument that venue is proper in the Western District of Kentucky under Section 1391(b)(1) because they relied solely upon Section 1391(b)(2) in the Complaint. NES has recognized that Plaintiffs “were not required to include allegations in their Complaint showing that venue is proper.” (Def.'s Reply 6, DN 26). Rather, NES contends that “Plaintiffs chose to make those allegations, and are now bound by them.” (Def.'s Reply 6). Genie argues likewise.[3]

         The Court finds this argument unpersuasive. Section 1391(b)(2) is not even cited in the Complaint. Instead, the Complaint provides that “[v]enue is proper in this district under 28 U.S.C. § 1391.” (Compl. ¶ 10). True, it goes on to allege that:

A substantial part of the events giving rise to the claim occurred in this district, and specifically in the Louisville division. In January 2012, the defectively designed Genie S-85 Boom Lift at issue in this case was shipped to NES's facility in Louisville, Kentucky. Since that time, all of NES's maintenance on this Boom Lift has been performed by NES employees located in Louisville, Kentucky. In January 2014, NES's Louisville office leased the Boom Lift to the decedent's employer. All of the NES witnesses expected to testify about the leasing, maintenance, and inspection of this Boom Lift are located in Kentucky ...

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