Stokes v. Chrysler Corp. CV-94-647-SD 06/26/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gina Stokes, David Stokes, individually; Joanne Falmachi-Johnson, personal representative of the Estate of Tammi Stokes

v. Civil No. 94-647-SD

Chrysler Corporation

O R D E R

In this civil action, plaintiffs Gina and David Stokes, and

Joanne Falmachi-Johnson on behalf of the Estate of Tammi Stokes,

allege claims of (1) negligence, (2) strict liability, (3)

negligent failure to warn of defect, (4) breach of express

warranties, (5) breach of implied warranties, and (6) negligent

infliction of emotional distress against defendant Chrysler

Corporation for injuries incurred when plaintiffs' Jeep Cherokee

was involved in a motor vehicle accident.

Presently before the court is Chrysler's motion to dismiss

for improper venue pursuant to

(a)(2) or, in the

alternative, to transfer for lack of venue pursuant to

(a).1 Plaintiffs object to the requested relief.

Factual Background

On December 19, 1992, Maine residents Gina and David Stokes,

traveling in their 1984 four-door Jeep Cherokee,2 drove to

Winooski, Vermont, to pick up their daughter Tammi, a student at

St. Michael's College. Complaint 5 12. After picking up Tammi

and completing some Christmas shopping, the Stokes family began

their return trip to Maine.

55 13-14.3

Plaintiffs assert that at approximately 8:00 p.m., while

crossing the intersection of Routes 25 and 10 in Piermont, New

1Chrysler additionally requests a hearing on the instant motion pursuant to Local Rule 1 1 (g) . Standard practice under the local rules of this district is for motions to be decided "without oral argument on the basis of papers filed." Local Rule 1 1 (g) (emphasis added). Although the court, in its discretion, may allow oral argument, counsel is required to submit a written statement "outlining the unusual reasons why oral argument may provide assistance to the court . . . ."

(emphasis added). Notwithstanding the absence of any such statement, the court finds that oral argument is unnecessary to a proper determination of the motion. Accordingly, defendant's request is denied.

2Over unqualified denial by Chrysler, plaintiffs maintain that "[a]t all times relevant to this action. Defendant Chrysler Corporation was a corporation engaged in the design, manufacture, distribution, and/or sale of the motor vehicles known as Jeep Cherokees, including the Jeep Cherokee which was purchased and used by Stokes." Complaint 5 36.

3The seating arrangement was as follows: Mr. Stokes was driving, Mrs. Stokes was seated in the front passenger seat, and Tammi was seated in the rear seat. Complaint 5 16. All three allegedly were wearing their seatbelts at all times.

5 15.

2 Hampshire, a tractor-trailer struck the Jeep Cherokee on the

front driver's side.

55 16-18. The vehicle allegedly

rotated and struck the tractor-trailer at least one more time

before coming to a stop facing north and tipped onto the

passenger side.

55 19-20. Plaintiffs assert that, although

both Mr. and Mrs. Stokes remained in their seats during the

accident, Tammi did not.

5 21.

Plaintiffs further assert that during the collision the

locking mechanism securing the back seat in an upright position

failed and a defect in the latching mechanism to the back hatch

caused it to be separated from the vehicle.

55 22, 42. As a

conseguence of these alleged defects, Tammi was thrown from the

vehicle during the collision and suffered severe head injuries.

55 22, 29-30. Tammi was taken from the accident scene to

Mary Hitchcock Hospital in Lebanon, New Hampshire, where she was

pronounced dead at 9:21 p.m. that same evening.

5 29.

Discussion

Dismissal Under

(a) (2)

In federal cases brought under diversity of citizenship,

venue is governed by

(a).4 Chrysler asserts that

(a) (Supp. 1995) states:

A civil action wherein jurisdiction is

3 venue is improper in New Hampshire under section 1391(a) (2)

because plaintiffs cannot show that a substantial part of the

events giving rise to their claim occurred in New Hampshire.5

As a general matter, whether venue in this district is

appropriate is a matter for the court to determine, and it is

plaintiffs' burden to show that venue is proper. See, e.g.. Lex

Computer & Mqmt. Corp. v. Eslinqer & Pelton, P.C., 67

(D.N.H. 1987) ("Plaintiffs have the burden to establish

that venue is appropriate in this district."); see also 15 C h a r l e s

founded only on diversity of citizenship may, except as otherwise provided by law, 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 claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

(Emphasis added.)

5Although Chrysler acknowledges that "[t]he subject accident took place in New Hampshire," it asserts that "the defendant's allegedly culpable conduct took place elsewhere." Defendant's Memorandum of Law at 3. Chrysler contends that the "events . . . giving rise to the claim" are the manufacturer's conduct in "a) designing and manufacturing an allegedly defective product; b) allegedly failing to provide adeguate warnings about that product's supposed dangers; and c) thereafter placing an allegedly defective product in the channels of trade."

at 2- 3.

4 A. W r i g h t , et a l ., Federal Practice and P r o c e d u r e : J u r i s d i c t i o n 2 d § 382 6,

at 259 (1986) ("when objection has been raised, the burden is on

the plaintiff to establish that the district he chose is a proper

venue").

This court has previously recognized that venue may be

proper in more than one district. See VDI Technologies v. Price,

(D.N.H. 1991) (since the language of section

1391(a)(2) "'accepts venue in a district in which "a substantial

part" of the activities (out of which the claim arose) took

place, . . . there may be several districts that gualify as a

situs of such "substantial" activities'" (guoting David D.

Siegel, Commentary on 1990 Revision of Subdivisions (a), (b), and

(c),

(West Supp. 1991)) (Siegel Commentary)).6

"'The fact that substantial activities took place in district B

does not disgualify district A as proper venue as long as

"substantial" activities took place in A, too.'" VDI

Technologies, supra,

(guoting Siegel

Commentary); see also Wright, supra, § 3806, at 17 (Supp. 1995)

6Other districts have also found that "[s]ection 1391(a) does not reguire finding venue proper in only a single district." Miller v. Meadowlands Car Imports, Inc.,

(D. Conn. 1993) (citing Sidco Indus., Inc. v. Wimar Tahoe Corp.,

(D. Or. 1991); see also Cottman Transmission Svs., Inc. v. Martino,

(3d Cir. 1994) ("amendment changed pre-existing law to the extent that the earlier version had encouraged an approach that a claim could generally arise in only one venue").

5 ("Under the amended statute it is now absolutely clear that there

can be more than one district in which a substantial part of the

events giving rise to the claim occurred.").

The guestion herein presented, therefore, is whether

plaintiffs' motor vehicle accident constitutes a substantial part

of "the events . . . giving rise to [their] claim." See

(a)(2). One asserted basis for recovery in the

instant action is products liability.7 "In a products liability

case, [although] 'the events or omissions' [giving rise to the

claim] could conceivably touch upon numerous forums," 2A Louis R.

Frumer & M elvin I. F r i e d m a n , P r o d u c t s L iability § 16.10, at 16-104

(1994), "the situs of the occurrence is the standard reference

point for determining the most convenient forum," id. at 16-103.

Correspondingly, although design and manufacture of the

product are substantial events, so too is the product's alleged

failure. See id. ("A products liability claim is never evaluated

in a vacuum. How, when and where the product was being used . .

. create the framework for evaluating the issues of defect and

proximate cause."); see also Rosenfeld v. S.F.C. Corp., 7 02 F.2d

7Mindful that the majority of plaintiffs' claims sound in tort, the court notes that "[i]t is well established in this district that a tort claim arises in the jurisdiction where the injury occurs." Lex Computer, supra, 676 F. Supp. at 406 (citing Centronics Data Computer Corp. v. Mannesmann,

(D.N.H. 1977)) .

6 282, 284 (1st Cir. 1983) (acknowledging a "place of injury" test

as appropriate when conducting venue inguiry). In the instant

action, it is beyond dispute that the alleged failure occurred,

if at all, in New Hampshire.

Moreover, the collision and the events immediately following

it were witnessed by New Hampshire residents and investigated by

the New Hampshire State Police. "Usually, witnesses on the scene

immediately following an occurrence are also important

'historians' concerning 'what happened.' These persons include

not only the eyewitnesses to the accident, but investigating

police officers, firefighters, emergency medical personnel,

ambulance attendants, tow truck operators, and all other persons

who viewed the product, the accident scene and the injured person

during and immediately after the accident." Frumer & Fr i ed man,

supra, § 16.10, at 16-103.8

Because alleged product failure and resulting injuries serve

as the basis for plaintiffs' claims, the court finds that the

Piermont, New Hampshire, motor vehicle accident was the catalyst

for this action and, as such, a substantial event sufficient to

8In this regard, the court notes that retaining venue in this district likewise places all such witnesses within this court's 100-mile subpoena power. See Rule 45(b)(2), Fed. R. Civ. P.; see also F r u m e r & F r i e d m a n , supra, § 16.10, at 16-103 ("the situs of the occurrence . . . may also be the only forum . . . where the principal non-party witnesses can be compelled to testify") .

7 confer venue in this district. Accordingly, the court hereby

finds and rules that venue is appropriate under section

1391(a) (2).9 Defendant's motion to dismiss or, in the

alternative, to transfer must be and herewith is denied.

Conclusion

For the reasons set forth herein, defendant's motion to

dismiss or, in the alternative, to transfer (document 11) is

denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 26, 1995

cc: Robert M. Nadeau, Esg. Peter M. Durney, Esg.

9As an alternative to dismissal, defendant moves to transfer the present action for improper venue "to an appropriate," yet undenominated, "federal court" pursuant to

(a). Defendant's Motion to Dismiss at 1. However, before an action can be transferred pursuant to section 1406, it must be shown that venue in this district is improper. Buckley v. Bourdon,

, 100 n.5 (D.N.H. 1988). Section 1406(a) is inapposite to the present inguiry because the statute "is intended to be invoked to cure a defect in venue. If there is no defect in venue, the statuteis not relevant to the case." Freund v. Fleetwood Enters., Inc.,

(D. Me. 1990); see also Martin v. Stokes,

(6th Cir. 1980) ("§ 1406(a) applies in general to those actions brought in an impermissible forum"). The court, having found venue appropriate pursuant to

(a) (2), accordingly denies defendant's section 1406(a) motion to transfer as moot.