                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2009

David Henderson v. Kenneth Keisling
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1247




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Recommended Citation
"David Henderson v. Kenneth Keisling" (2009). 2009 Decisions. Paper 1154.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1154


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BLD-179                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 09-1247
                                     ___________

                                DAVID HENDERSON,
                                              Appellant

                                           v.

                              KENNETH KEISLING;
                              NANCY HENDERSON
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 09-cv-00021)
                      District Judge: Honorable Robert F. Kelly
                     ____________________________________

                        Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and 3d Cir. I.O.P. 10.6.
                                      May 7, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                 (Filed: June 22, 2009 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      David Henderson, a pro se litigant, appeals from an order by the District Court

dismissing his claim for improper venue. For the following reasons, we will vacate the
order dismissing the action for improper venue and remand the matter for further

proceedings consistent with this opinion.

       As we write solely for the benefit of the parties, we will set forth briefly only those

facts necessary to our analysis. In January 2009, Henderson filed a personal injury

complaint in the Eastern District of Pennsylvania against his brother-in-law, Kenneth

Keisling, and his sister-in-law, Nancy Henderson, seeking millions of dollars in damages.

According to the complaint, defendant Henderson resides in Portland, Oregon, and

Keisling resides in Tannersville, a town in Monroe County Pennsylvania. Federal

jurisdiction is evidently based on the diversity of the parties.

       The complaint alleges that from 1980 to the present, the defendants have been part

of a conspiracy designed to keep Mr. Henderson from publicly sharing information he

learned about a government conspiracy. Mr. Henderson pled no information regarding

the defendants’ roles in the conspiracy or the whereabouts of the alleged actions they took

in furtherance of the conspiracy. Noting that neither defendant resides in the Eastern

District of Pennsylvania, and the absence of any accusation that any activities in

furtherance of the conspiracy occurred in the district, the District Court dismissed the case

without prejudice pursuant to 28 U.S.C. § 1391(b). This appeal followed.

       We have jurisdiction over the appeal under 28 U.S.C. § 1291. We may take

summary action if Henderson’s appeal presents no substantial question of law or fact.

See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.



                                               2
       As the District Court properly noted there are several defects with Hednerson’s

choice of venue. Under 28 U.S.C. § 1391(a)1 , civil actions wherein jurisdiction is

founded solely on diversity of citizenship may:

       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 claims
       occurred, or a substantial part of the property that is 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.

Applying this statute here, it is clear that the Eastern District of Pennsylvania is not a

proper venue for Henderson’s claim. One defendant resides in the Middle District of

Pennsylvania and the other lives in Portland, Oregon. Furthermore, the plaintiff provided

no information as to whether a substantial part of the events giving rise to the claim

occurred in the Eastern District, the claim is not in rem, and there are other districts in

which the action may be brought.

       A district court’s authority to dismiss a claim for improper venue is provided by 28

U.S.C. § 1406(a), which states:

       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.


       1
        The District Court dismissed the complaint pursuant to 28 U.S.C. § 1391(b),
which mirrors § 1391(a), but applies to cases where jurisdiction is not founded solely on
the diversity of the parties as is the case here. As the two sections are identical in
substance, our analysis is unaltered.

                                                3
However, it may only do so if the defendant objects to venue. 28 U.S.C. § 1406(b)

(“Nothing in this chapter shall impair the jurisdiction of a district court of any matter

involving a party who does not interpose timely and sufficient objection to the venue.”).

In Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976), we held “it is inappropriate for the

trial court to dispose of the case sua sponte on an objection to the complaint which would

be waived if not raised by the defendant(s) in a timely manner.” Furthermore, we

explained, “even where a defect in venue has been properly raised, a question remains

whether the case should be dismissed or transferred to a district in which venue would be

proper.” Id. See also Anger v. Revco Drug Co., 791 F.2d 956, 958 (D.C. Cir. 1986)

(“Improper venue, like lack of personal jurisdiction, is a threshold defense open to a

party, but subject to foreclosure absent timely objection.”).

       Accordingly, we vacate the District Court’s order and remand the matter to the

District Court for further proceedings consistent with this opinion.




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