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Vivint Louisiana, LLC v. City of Shreveport

United States District Court, M.D. Louisiana

March 23, 2015

VIVINT LOUISIANA, LLC
v.
CITY OF SHREVEPORT, ET AL

RULING AND ORDER

BRIAN A. JACKSON, Chief Judge.

Before the Court is Defendant's Motion to Dismiss Pursuant to Rule 12(b)(3), or In the Alternative, Motion to Transfer (Doc. 13), filed by the City of Shreveport. Plaintiff Vivint Louisiana, LLC opposes the motion. (Doc. 15). Oral argument is not necessary. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

Vivint Louisiana, LLC ("Vivint") filed this action in the Middle District of Louisiana against the City of Shreveport ("Shreveport") and the State of Louisiana, Department of Public Safety, Office of State Fire Marshal ("Fire Marshal") pursuant to 42 U.S.C. § 1983. (Doc. 1 at ¶ 1). Vivint alleges that Section 42-277 of the Shreveport Municipal Code, which prohibits door-to-door solicitation, is an unconstitutional violation of Vivint's freedom of expression as protected by the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Louisiana Constitution. (Id. at ¶¶ 3, 8-12).

On January 16, 2015, Vivint filed a Notice of Voluntary Dismissal (Doc. 11), seeking an order dismissing the Fire Marshal[1] from this action without prejudice, which this Court subsequently granted. (Doc. 12). Thus, Shreveport is the only remaining defendant in this case.

II. MOTION TO DISMISS

Federal Rule of Civil Procedure ("Rule") 12(b)(3) permits a defendant to move to dismiss a case for improper venue. When ruling on a Rule 12(b)(3) motion, "the court must accept as true all allegations in the complaint and resolve all conflicts in favor of the plaintiff." Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 Fed.App'x 612, 615 (5th Cir. 2007). If the Court determines that venue is improper, the Court "shall dismiss, or if it be in the interest of justice, transfer such case to any district... in which it could have been brought." 28 U.S.C. § 1406(A).

Venue is governed by § 1391, which provides that a civil action may be brought in:

(1) A judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(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) if there is no district in which an action otherwise may be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

Here, Vivint argues that venue is proper under § 1391(b)(1) because all defendants are residents of Louisiana, and when this case was filed, one of the defendants, the Fire Marshal, resided in this district. (Doc. 15 at p. 3). In addition, Vivint contends that venue is also proper under § 1391(b)(2), as a substantial part of the events giving rise to this claim occurred in this district. (Id. at pp. 3-4). In opposition, Shreveport asserts that had the "Fire Marshal remained a defendant[, ] then it appears that venue could have been proper in this District, even though a public official can reside in multiple districts (including the Western District)." (Doc. 13-2 at p. 3). Shreveport further contends that "it cannot be seriously suggested" that the substantiality requirement of § 1391(b)(2) is met as "all of the acts at issue occurred in Shreveport." (Id. at pp. 3-4).

The most relevant inquiry on a 12(b)(3) motion to dismiss for improper venue is whether jurisdiction and venue existed at the time this action was filed. See Hoffman v. Blaski, 363 U.S. 335, 344 (1960). Here, the Complaint provides no information regarding the specific domiciles of any party save for the City of Shreveport, whose domicile is facially apparent. ( See Doc. 1). However, Vivint asserts that "[a]t the time of filing of the Complaint, the Fire Marshal was (and continues to be) domiciled in East Baton Rouge Parish." (Doc. 15 at p. 3). Because Shreveport has offered no evidence to refute this assertion, the Court will accept it as true. Therefore, although the Fire Marshal was ...


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