The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is Defendants' motion to dismiss for improper venue (Doc. 9). Specifically, Defendants argue that venue is improper in this district and that venue is proper in the Northern District of Ohio as Plaintiffs' claims are brought pursuant to the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq., therefore, Plaintiffs' claims are subject to the mandatory venue provision, 29 U.S.C. § 412. On December 11, 2007, the Court ordered Plaintiffs to respond to the motion to dismiss by noon on December 13, 2007 (Doc. 13). Plaintiffs have done so (Doc. 17). Based on the following, the Court DENIES the motion to dismiss for improper venue, however, accepting the statutory alternative, given the press of time and in the interest of justice, the Court TRANSFERS this case to the District Court for the Northern District of Ohio.
On December 3, 2007, Plaintiffs Dale E. Michael, John R. Hasenauer, Roy G. Arnold and Jimmy Eubanks filed a complaint for declaratory and emergency injunctive relief against Paul Thompson and the United Transportation Union for violations of the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 101(a)(1) and (2) ("LMRDA")and the Labor Management Relations Act, 29 U.S.C. § 185 ("LMRA") (Doc. 3). Plaintiffs bring this suit seeking a declaration that a referendum conducted by their union to merge with another union, the Sheet Metal Workers International Association ("SMWIA")*fn1 , is unlawful and that the results are null and void, and to enjoin consummation of the merger on January 1, 2008, by virtue of the fact, inter alia, that the membership was not furnished with crucial information with which to evaluate the implications of the merger and were forced to cast their ballots in an informational vacuum. (Doc. 3.) The complaint has two counts: (1) breach of the UTU constitution and the Merger Agreement in violation of the LMRA, 29 U.S.C. § 185; and (2) a violation of equal voting rights in violation of Title I of the LMRDA, 29 U.S.C. § 101(a)(1) and (2). Plaintiffs are rank and file union members of the United Transportation Union ("UTU") (Doc. 3, ¶ ¶ 3-6).*fn2 Defendant Paul Thompson is the current president of the UTU and the UTU is a labor organization within the meaning of 29 U.S.C. § 152(5) and 402(i) and its headquaters are located in Cleveland, Ohio (Doc. 3, ¶ ¶ 7-8).
On December 7, 2007, Plaintiffs filed a motion for preliminary injunction (Docs. 5, 6 & 8).*fn3 That same day, the Court set the matter for hearing on the preliminary injunction for December 17, 2007 (Doc. 7). Thereafter on December 10, 2007, Defendants filed their motion to dismiss for improper venue based on Rule 12(b)(3) and 28 U.S.C. § 1406(a) (Doc. 9). On December 11, 2007, Plaintiffs re-filed their motion for preliminary injunction (Doc. 16). The Court turns now to address the merits of the motion to dismiss for improper venue.
Defendants move to dismiss based on the grounds that venue is improper in this district pursuant to 28 U.S.C. § 1406(a) and Federal Rule of Civi Procedure 12(b)(3). Rule 12(b)(3) provides that a party may move to dismiss an action when the action is not filed in a proper venue. Fed.R.Civ.P. 12(b)(3). If a court determines that it is not the proper venue for the action the court is required to dismiss the action or "if it be in the interests of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a); see Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999). 28 U.S.C. § 1406(a) provides:
"The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
28 U.S.C. § 1406(a). The decision to transfer is left to the sound discretion of the court. Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986).
As to venue regarding LMRDA claims, 29 U.S.C. § 412 provides in part: Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of the labor organization is located.
Defendants argue that venue is proper only in the Northern District of Ohio as the UTU is headquatered in Cleveland, Ohio and that is where the challenged decisions regarding election procedure were made. Defendants state that "[t]he alleged 'violation' in this case is the timing of the merger ratification vote and the method by which the UTU decided to conduct the vote. The fact that UTU members in judicial districts all over the United States took part in that vote does not create an "alleged violation" in each such district, or indeed, anywhere outside of the Northern District of Ohio." In response, Plaintiffs argue that venue is proper in the Southern District of Illinois as the LMRDA violations occurred within the Southern District "given that the case concerns a national referendum conducted by mail and telephone among UTU members who live within this Court's jurisdiction, as well as elsewhere." (Doc. 17, p. 3.) Plaintiffs further argue:
As set forth in the Complaint, the proposal to merge the UTU and the Sheet Metal Workers required approval of the entire UTU membership. As a national referendum, the procedure contemplated that each member would exercise his/her voting rights in the jurisdiction of each person's residence, at local meetings, by telephone, email, and publication and distribution of flyers, etc. Under the LMRDA and the UTU Constution, the Union was required to provide each member, by mail, with copies of the relevant documents and voting instructions or ballots. In their Complaint, plaintiffs allege that the information each member received and upon which each ...