Brewer v. United States
4:17-cv-00870
| S.D. Tex. | Jun 19, 2017Background
- Plaintiff Charles H. Brewer sued the United States under the Federal Tort Claims Act for alleged medical malpractice.
- Brewer filed in the Southern District of Texas, alleging he was a part-time resident of that district when the events occurred.
- Brewer’s complaint and the government’s exhibits showed the malpractice primarily occurred in Shreveport, Louisiana and, to a lesser extent, Dallas, Texas; Brewer currently resides in Dallas (Northern District of Texas).
- The United States moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), alternatively seeking transfer to the Western District of Louisiana under 28 U.S.C. § 1402(b).
- Brewer did not respond to the motion. The court evaluated venue under the FTCA’s venue statute (28 U.S.C. § 1402(b)) rather than the general venue statute cited by Brewer (§ 1391(e)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue in the Southern District of Texas is proper for an FTCA tort claim | Brewer asserted venue was proper under 28 U.S.C. § 1391(e) based on part-time residency in the Southern District | Venue for FTCA tort claims is governed by 28 U.S.C. § 1402(b); plaintiff resides in Northern District (Dallas) and the alleged acts occurred mainly in Louisiana | Venue is improper in the Southern District of Texas under § 1402(b) |
| Whether the case should be dismissed or transferred under § 1406(a) | (No response from Brewer arguing transfer) | Government sought dismissal or, alternatively, transfer to the Western District of Louisiana where most acts occurred | Court dismissed without prejudice; did not exercise transfer because plaintiff did not argue transfer was in the interest of justice |
| Burden of proof on venue after a Rule 12(b)(3) motion | Plaintiff initially alleges venue; courts in the circuit vary on which party bears burden after a motion | Government presented evidence showing wrong venue; court noted either framework is satisfied here | Court concluded the government satisfied its burden showing improper venue |
Key Cases Cited
- Psarros v. Avior Shipping, Inc., 192 F. Supp. 2d 751 (S.D. Tex. 2002) (discussing plaintiff’s burden to prove chosen venue is proper)
- Braspetro Oil Servs. Co. v. Modec (USA), Inc., [citation="240 F. App'x 612"] (5th Cir.) (on accepting plaintiff’s venue allegations on a Rule 12(b)(3) motion and resolving conflicts in plaintiff’s favor)
- Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133 (9th Cir. 2004) (venue-pleading standard cited for Rule 12(b)(3) review)
- Argueta v. Banco Mexicano, S.A., 87 F.3d 320 (9th Cir. 1996) (permitting consideration of extrinsic evidence on venue challenges)
- ESI, Inc. v. Coastal Power Prod. Co., 995 F. Supp. 419 (S.D.N.Y. 1998) (same: courts may consider evidence outside the complaint when resolving venue motions)