United States District Court, W.D. Kentucky, Louisville Division
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
NES RENTALS HOLDINGS, INC., DEFENDANTS
MEMORANDUM OPINION & ORDER
N. Stivers, Judge United States District Court
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.
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). 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
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.
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).
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
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 ...