                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 17 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JARROD GOFF,

                Plaintiff-Appellant,

    v.                                                   No. 98-7137
                                                    (D.C. No. 98-CV-85-P)
    HACKETT STONE COMPANY;                               (E.D. Okla.)
    EUGENE IBISON, SR., Individually
    and as Owner of Hackett Stone
    Company,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before PORFILIO , McKAY , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Jarrod Goff brought this diversity action against his former employer,

Hackett Stone Company, and its owner, Eugene Ibison, Sr., for wrongful

termination. After the parties agreed to proceed before a magistrate judge

pursuant to 28 U.S.C. § 636(c), defendants moved to dismiss for lack of personal

jurisdiction, improper venue, and failure to state a claim on which relief can be

granted, see Fed. R. Civ. P. 12(b)(2), (3), (6). Because the parties submitted

materials outside the pleadings, the district court converted the motion to dismiss

to one for summary judgment, and granted judgment in defendants’ favor on

personal jurisdiction and venue grounds. Plaintiff appeals. We conclude that the

district court correctly determined that venue was improper, and that the case was

not appropriately brought in that court; we therefore need not address the personal

jurisdiction question.   1



       Because subject matter jurisdiction over plaintiff’s action is founded solely

on diversity, 28 U.S.C. § 1391(a) governs venue in this case. Plaintiff asserts that

venue could lie in the Eastern District of Oklahoma only under subsection (2) of

that statute, which requires that “a substantial part of the events or omissions



1
      The only other appropriate federal venue is in Arkansas, not one of the
other Oklahoma districts.

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giving rise to the claim occurred” in that district. The underlying basis for his

wrongful termination claim is that defendants terminated him because he was

subject to an income assignment executed for enforcement of child support, which

he contends was an improper reason. The order for child support was issued by

the county court of LeFlore County, Oklahoma, which is in the Eastern District.

Plaintiff bases his claim of venue in the Eastern District on the issuance of this

order.

         There are no facts in dispute, and we therefore review the district court’s

venue decision de novo.     See Pierce v. Shorty Small’s of Branson Inc.   , 137 F.3d

1190, 1191 (10th Cir. 1998);    Hooker v. United States Dep’t of Health & Human

Servs. , 858 F.2d 525, 528 n.2 (9th Cir.1988). All aspects of plaintiff’s

employment, including his discharge, occurred in Arkansas, as he admits. The

issuance of the order from an Oklahoma court that allegedly led to the discharge

is simply too tangential to be considered a substantial part of the events giving

rise to the claim. Moreover, venue statutes are generally designed for the benefit

of defendants, and in determining what events or omissions give rise to a claim,

the “focus [is] on relevant activities of the defendant, not of the plaintiff.”

Woodke v. Dahm , 70 F.3d 983, 985 (8th Cir. 1995). Issuance of the court order

cannot be considered an activity of defendants; if anything, it would be

considered an activity of plaintiff, since it apparently resulted from his


                                            -3-
nonpayment of child support. We thus agree with the district court that venue

was not proper in the Eastern District of Oklahoma.

       We do, however, disagree with the district court’s disposition of this case.

It converted defendants’ entire motion to dismiss to one for summary judgment

because materials were submitted outside the pleadings. That is appropriate for a

motion to dismiss for failure to state a claim under Rule 12(b)(6),    see Rule 12(b)

(“If, on a motion asserting the defense numbered (6) . . . , matters outside the

pleadings are presented to and not excluded by the court, the motion shall be

treated as one for summary judgment . . . .”), but it is not appropriate for motions

to dismiss for lack of personal jurisdiction or improper venue under

Rules 12(b)(2) and (3). Dismissals for these reasons should be without prejudice.

See Rule 41(b). In contrast, dismissals under Rule 12(b)(6) or entries of summary

judgment are with prejudice and may preclude any subsequent action in another

district. See Sherman v. American Fed’n of Musicians        , 588 F.2d 1313, 1314 (10th

Cir. 1978); EF Operating Corp. v. American Bldgs.        , 993 F.2d 1046, 1048-49 (3d

Cir. 1993) ; see also 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane,

Federal Practice and Procedure      , § 2713 (“In general, courts have ruled that

summary judgment is an inappropriate vehicle for raising a question concerning

the courts[’] subject-matter jurisdiction, personal jurisdiction or venue . . . .”).

The court therefore should have dismissed this case, whether for lack of personal


                                            -4-
jurisdiction or improper venue, without prejudice rather than granting summary

judgment to defendants.

      Accordingly, the judgment of the district court is VACATED, and the case

is REMANDED to the district court for entry of an order dismissing the case

without prejudice.



                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge




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