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BOUSIS v. MARRIOTT INTERN.

May 7, 1999

VICTORIA BOUSIS, PLAINTIFF,
v.
MARRIOTT INTERNATIONAL, INC., AND YBG ASSOCIATES, L.L.C., DEFENDANTS.



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 venue.

I. BACKGROUND

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.

II. DISCUSSION

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 that:

  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.

B. Motion to transfer

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 id; ...


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