In Tobien v. Nationwide Gen. Ins. Co., No. 24-5575 (6th Cir. Apr. 2, 2025), the Sixth Circuit follows the majority rule in holding that on a Fed. R. Civ. P. 12(b)(3) motion to dismiss for improper venue, it is the plaintiff that must prove that their case lies in the district where they filed it.
“One Thursday in May 2023, Karl Tobien laced up his boots and hit the road. His plan for the day? Selling telecommunications services from door to door in Clermont County, Ohio. Being a door-to-door salesman isn’t easy, and Tobien must have been prepared to encounter the usual hazards, like inclement weather or angry homeowners. But he couldn’t have expected what awaited him at the end of a cul-de-sac in the serene hamlet of Loveland, Ohio. As he walked up the driveway of one of the houses, Tobien was attacked by a dog.”
While Tobien filed his personal-injury case against the homeowners in Ohio, he brought his case against the homeowners’ insurer in the Eastern District of Kentucky where the plaintiff lived. The insurer moved to dismiss on venue grounds.
The district court held “that Tobien had filed this lawsuit in the wrong place. According to the court, most of the relevant action had happened in Ohio. So the federal court in Eastern Kentucky wasn’t a proper venue for the lawsuit. Then, rather than transfer the lawsuit to a court where venue would have been proper (like the Southern District of Ohio), the district court chose to dismiss the lawsuit outright.”
The Sixth Circuit affirms. “In resolving this appeal, our first task is to determine who bears the burden of proof. Does Tobien, as the plaintiff, bear the burden to show that a substantial part of the events giving rise to his claim occurred in the Eastern District of Kentucky? Or does Nationwide, as the defendant, bear the burden to negate that a substantial part of the events occurred there?”
The panel notes that the issue is one of first impression in the circuit and that the other circuits are divided: the First, Second, Fourth, and Seventh Circuits place the burden of proof on the plaintiff, while the Third and Eighth Circuits place it on the defendant.
The panel takes the majority view that the burden falls on the plaintiff to prove venue. The panel analogizes to personal jurisdiction, also deemed an affirmative defense, where the plaintiff has the burden of proving that a court has jurisdiction over the defendant. While “defendants normally bear the burden to prove affirmative defenses,” the panel notes that this principle refers only to “affirmative substantive defenses,” such as those listed in Rule 8(c), while “affirmative dilatory defenses” like venue demand proof by the defendant.
The panel then affirms the dismissal on venue grounds. Here, “[t]he only facts that could even arguably support venue under § 1391(b)(2) were (a) Tobien’s residence in the Eastern District of Kentucky and (b) that Nationwide conducts business in that district.”
While the plaintiff also conducted communications with the insurer from his home in Kentucky, this is insufficient to prove that “a substantial part of the events or omissions giving rise to [Tobien’s] claim.” “[U]nder Tobien’s [communications] theory, a plaintiff could make venue proper in any of the 50 states simply by traveling there and sending letters to the insurance company from that state. Congress did not intend to allow plaintiffs to manipulate the venue rules in that way . . . .”
The panel finally affirms the district court’s decision to dismiss rather than transfer the case to Ohio, holding that the claim would fail as a matter of law and that transfer would therefore be futile.
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