The opinion of the court was delivered by: Brown, Chief Judge
This matter comes before the Court upon the motion of Defendants Medline DiaMed, LLC and Scott Wakser (collectively, "Defendants") to dismiss Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), (3), (6) and the "first-filed" rule or, in the alternative, to transfer the matter to the United States District Court for the Northern District of Ohio pursuant to 28 U.S.C. § 1404 (Doc. No. 11). The Court has decided the matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, the Court will grant the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3), deny the remainder of the motion as moot, and transfer the matter to the United States District Court for the Northern District of Ohio.
On December 20, 2010, Defendant Medline DiaMed, LLC instituted an action against the plaintiffs in this action in the Court of Common Pleas, Stark County, Ohio (the "TRO Action") resulting in an ex parte Temporary Restraining Order, which prohibited Plaintiffs from "[s]oliciting or in any way engaging in contact with any Customer and/or Prospective Customer of Medline DiaMed, LLC." (Complaint ¶ 1). On January 12, 2010, Medline DiaMed, LLC dismissed the TRO Action. (Complaint ¶ 3).
On or about January 13, 2011, plaintiffs Community Surgical Supply of Toms River, Inc. ("CSS"), Jerrold Fried, Michael Fried, Howard Fried, Linda LiBassi, Laura Cronin and Melissa Haithcock (collectively, "Plaintiffs"), each of whom were defendants in the TRO Action, filed their Complaint in this Court against Medline DiaMed, LLC and Scott Wakser (Doc. No. 1), alleging claims of malicious use of process (Count I), invasion of privacy (Count II), breach of contract (Count III), unjust enrichment (Count IV) and intentional interference with prospective economic advantage (Count V). Plaintiffs assert diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and maintain that venue is proper in this Court pursuant to 28 U.S.C. § 1391(a)(2) "because a substantial part of the events or omissions giving rise to the claims asserted herein occurred in this judicial district." (Complaint ¶¶ 13-14). On or about March 28, 2011, Defendants filed the instant motion to dismiss or, in the alternative, to transfer. Defendants argue that venue is improper because "a substantial part of the events giving rise to Plaintiffs' claims occurred in Ohio". (Defendants' Br. at 17).
The United States Code provides: "A civil action wherein jurisdiction is 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 any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(a).
"The district court of a district in which is filed a case laying venue in the wrong division shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). "Section 1406(a) comes into play where plaintiffs file suit in an improper forum. In those instances, district courts are required either to dismiss or transfer to a proper forum." Lafferty v. St. Riel, 495 F.3d 72, 77 (3d Cir. 2007). See also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-66 (1962) (emphasizing that federal district courts may transfer-rather than dismiss-cases that plaintiffs initially brought in an improper forum, regardless of whether they otherwise have personal jurisdiction). Even if venue is proper, a court may transfer the case "[f]or the convenience of parties and witnesses [and] in the interest of justice." 28 U.S.C. § 1404(a). When cases have been dismissed for improper venue, plaintiffs in those cases must file anew in a proper forum. Lafferty, 495 F.3d at 77.
The Third Circuit has held that the movant (the defendant) bears the burden of demonstrating that venue is not proper. Myers v. American Dental Ass'n, 695 F.2d 716, 724-25 (3d Cir. 1982). The defendant also bears the burden of establishing that a venue transfer is warranted. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (citations omitted). Furthermore, "in ruling on defendant's [transfer] motion the plaintiff's choice of venue should not be lightly disturbed." Id. (citations omitted).
A. Motion to Dismiss for Improper Venue
Defendants move to dismiss for both lack of personal jurisdiction and for improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), respectively. Although "[t]he question of personal jurisdiction . . . is typically decided in advance of venue," where, as here, "there is a sound prudential justification for doing so, . . . a court may reverse the normal order of considering personal jurisdiction and venue." Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979). Here, the venue factor will prove dispositive and therefore will be addressed first.
The complaint alleges jurisdiction in this Court solely on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1) and therefore venue is governed by 28 U.S.C. § 1391(a). The parties agree that defendant Scott Wakser is a resident of the State of Ohio and consequently Section 1391(a)(1) does not apply to make venue proper in New Jersey. (Complaint ¶ 12; Defendants' Br. at 17). Moreover, venue is not established in New Jersey pursuant to Section 1391(a)(3) because although Wakser may be subject to personal jurisdiction here (which is one point of contention between the parties) this action may have been properly brought in Ohio where Wakser resides. See J.F. Lomma, Inc. v. Stevenson Crane Servs., Inc., Civ. No. 10-3496 (SDW), 2011 WL 463051, at *5 (D.N.J. Feb 3, 2011) (collecting cases). Consequently, venue will only be proper if, in ...