The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Before the court is defendant Marriott International,
Incorporated's motion to dismiss for lack of venue pursuant to
Federal Rule of Civil Procedure 12(b)(3) or, alternatively, to
transfer venue pursuant to 28 U.S.C. § 1404. For the following
reasons, the court denies defendant's motion to dismiss for lack
of venue but grants defendant's alternative motion to transfer
Plaintiff Victoria Bousis ("Bousis") brings this diversity
action against the defendants Marriott International,
Incorporated ("Marriott") and YBG Associates, L.L.C. ("YBG").
Marriott is a business incorporated under the laws of Delaware
with its principal place of business in Maryland. YBG is a
limited liability company existing under the laws of Delaware.
This action allegedly arises out of a swimming pool accident
which occurred on or about February 16, 1997 in San Francisco,
California. Bousis, a law student, contends that both Marriott
and YBG owned, operated, managed, and maintained a certain
hotel.*fn1 On the premises of this hotel, Marriott and YBG
provide a pool for
the guests. While swimming, Bousis struck her nose against the
side of the pool. As a result, Bousis has allegedly sustained
"severe and permanent injuries."
On February 3, 1999, Bousis filed this action charging Marriott
and YBG with various negligent acts and/or omissions and seeking
monetary damages. In response to this complaint, Marriott filed a
motion to dismiss or in the alternative to transfer the case.
A. Motion to dismiss for lack of venue
Marriott requests this court to dismiss the case for lack of
venue pursuant to Federal Rule of Civil Procedure 12(b)(3)
because this court does not have personal jurisdiction over YBG.
However, in Bousis' response brief, Bousis agrees that this court
does not have personal jurisdiction over YBG and requests this
court to dismiss YBG from her complaint. Thus, this court will
dismiss YBG as a defendant in this case.
Title 28 of the United States Code section 1391(a) provides
A civil action wherein jurisdiction is founded only
on diversity of citizenship may, except as otherwise
provided by law, be brought only in (1) a judicial
district where any defendant resides, if all
defendants reside in the same State, (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, or (3) a judicial district in
which any defendant is subject to personal
jurisdiction at the time the action is commenced, if
there is no district in which the action may
otherwise be brought.
28 U.S.C. § 1391(a). For purposes of venue, "a defendant that is
a corporation shall be deemed to reside in any judicial district
in which it is subject to personal jurisdiction at the time the
action is commenced." Id. § 1391(c). Marriott, the only
remaining defendant, does not dispute that this court has
jurisdiction over it, thus, venue is proper. Accordingly, this
court denies Marriott's motion to dismiss for lack of venue.
Marriott requests this court to transfer this case to the
United States District Court for the Northern District of
California ("Northern District of California"). Pursuant to
28 U.S.C. § 1404(a), a district court may transfer a civil action
"[f]or the convenience of parties and witnesses [and] in the
interest of justice . . . to any other district or division where
it might have been brought." 28 U.S.C. § 1404(a). Transfer is
appropriate under § 1404(a) where the moving party establishes:
(1) that venue is proper in the transferor district; (2) that
venue and jurisdiction are proper in the transferee district; and
(3) that the transfer will serve the convenience of the parties
and the witnesses and will promote the interest of justice. See