MEMORANDUM

ALETA A. TRAUGER, District Judge.

Defendant Kia Motors Corporation ("KMC") has filed a Motion to Dismiss for Insufficient Service of Process and Improper Venue or, In the Alternative, to Transfer to the United States District Court for the Eastern District of Tennessee, Winchester Division (Docket No. 13), to which the plaintiffs have filed a Response in opposition (Docket No. 17), and KMC has filed a Reply (Docket No. 21). For the reasons stated herein, KMC's motion will be granted and the case will be transferred to the Winchester Division of the United States District Court for the Eastern District of Tennessee.

BACKGROUND

This case concerns a car crash that took place on February 10, 2014, in Coffee County, Tennessee. Coffee County lies outside the geographic area covered by this court but within the geographic area covered by the United States District Court for the Eastern District of Tennessee (hereinafter, the "Eastern District").

According to the Complaint, on February 10, 2014, Hudson Knost, a minor, was driving his mother's Kia-brand automobile on an interstate highway within Coffee County. His minor siblings, Gabriel Knost and Grace Knost, were riding as passengers in the car. All three allegedly were wearing seatbelts. For an unspecified reason, Hudson attempted an "avoidance maneuver" that caused the car to roll over onto the highway's median. During the rollover, Hudson was ejected from the car when the driver's side door opened, Gabriel was ejected from the vehicle, and Grace became trapped in the vehicle until emergency personnel later extracted her from it. All three suffered serious injuries.

The Complaint alleges that KMC, a South Korean corporation, manufactured, engineered, and marketed the Kia-brand car at issue and that the car was defectively designed in multiple respects, thereby causing the Knost siblings' injuries. Trisha Grant, who resides in Coffee County, is the Knost siblings' mother. She has sued Kia both individually and on behalf of her children (Hudson, Gabriel, and Grace) in her capacity as their "next friend," asserting claims for strict products liability, negligence, and breach of warranty. For purposes of simplicity, the court will refer to Grant and her minor children collectively as "the plaintiffs."

Grant is a Coffee County resident. In her briefing, she contends (and KMC does not dispute) that she shares custody of the Knost siblings with her former spouse, who lives in Murfreesboro, Tennessee. She asserts that the Knost siblings primarily reside in Murfreesboro and attend school there.

The plaintiffs originally filed their Complaint in the Circuit Court for Davidson County, Tennessee, on July 2, 2014. Reserving its right to challenge both the sufficiency of service of process and the propriety of venue, KMC removed the case to this court under 28 U.S.C. § 1441, based on diversity jurisdiction. (Docket No. 1). On September 10, 2014, KMC filed the instant Motion to Dismiss or Transfer, in which it initially (1) challenged the sufficiency of service and (2) urged the court to dismiss the case based on improper venue or to transfer it to the Winchester Division of the Eastern District.

At the November 17, 2014 initial case management conference, the parties informed the court that they have resolved issues related to service, thereby mooting KMC's motion as it relates to service of process. Accordingly, the court will address only KMC's venue-related challenges.

ANALYSIS

I. Applicable Legal Standard for Post-Removal Venue Challenge

Under 28 U.S.C. § 1441(a), a defendant may remove a case over which a federal court would have had original jurisdiction, provided that the defendant removes the case to the federal district court "embracing the place where such action is pending."1 Because the general venue statute (§ 1391) does not apply to removed actions, federal courts have struggled with whether a defendant who removes to the appropriate district court under § 1441 may thereafter challenge the propriety of venue following removal. The propriety of venue can impact both the statutory authority for transferring a case and whether the choice-of-law rules of the transferor court will apply in the transferee court under the rule of Van Dusen v. Barrack, 376 U.S. 612 (1964). In general, after a convenience transfer under § 1404(a) from one "proper" venue to another, the transferee court applies the law of the transferor court (i.e., the plaintiff gets the benefit of forum shopping), Van Dusen, 376 U.S. at 639, whereas after a transfer from an improper venue to a proper venue under § 1406(a), the transferee court applies its own law as if the case had been originally filed there (i.e., the plaintiff does not get the benefit of forum shopping). GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998) ("When a case is transferred [under § 1406(a)], the choice-of-law rules of the transferee court apply.") (emphasis in original).2

The prevailing view, adopted by most circuits to have addressed the issue (and endorsed in at least one leading treatise), is that a defendant who removes an action may challenge venue based on the venue provisions that would have been applicable in the state court, provided that the venue challenge has been properly preserved. See, e.g., Lambert v. Kysar, 983 F.2d 1110, 1113 n.2 (1st Cir. 1993) (finding that "the filing of a removal petition in a diversity action, without more, does not waive the right to object to the state court venue"); PT United Can Co., Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 72 (2d Cir. 1998) ("A party who removes an action from state to federal court does not, in so doing, waive the defense of improper venue as to the underlying state court action.") (internal quotation omitted); Transure, Inc. v. Marsh & McLennan, Inc., 766 F.2d 1297, 1300 (9th Cir. 1985) (examining state court venue rules in removed action); James Wm. Moore, Moore's Fed. Practice (3d ed. 2014), § 11.36[5][a].); but see Hollis v. Fl. State Univ., 259 F.2d 1295, 1298-1300 (11th Cir. 2001) (holding that defendant may not challenge venue following removal).3

Here, the court finds no reason to depart from that prevailing view, which sensibly preserves a defendant's ability to argue that the plaintiff filed its lawsuit in an improper geographic location. The text of § 1441(a) does not contain any language specifically stating that venue in the removal court is "proper" for purposes of the transfer statutes. If a plaintiff filed the case in an inappropriate geographic location in the first place, why should the court read § 1441(a) as essentially (a) rewarding the plaintiff for filing in an inappropriate geographic location and (b) penalizing a defendant for removing the case to the appropriate district under § 1441(a)? The better reading of § 1441(a), which most circuits have adopted, is that it simply fixes the location to which a particular case may be removed, without having a preclusive effect on the issue of the propriety of venue for purposes of post-removal transfer. To hold otherwise would essentially permit a plaintiff to nullify § 1391 by filing federal question or diversity cases directly in the wrong state court in order to get the benefit of that state's choice-of-law rules following removal under § 1441(a) and transfer under § 1404(a). There seems to be no policy rationale for adopting this expansive construction of § 1441(a) as it relates to the transfer statutes, which the text of § 1441(a) in no way requires.4

The court therefore will analyze whether venue was proper in Davidson County under Tennessee's venue provisions. As a general matter, in response to a venue challenge, a plaintiff has the burden to show that venue is proper in the court in which it filed the case. See McDonald v. Calhoun, 2007 WL 4460069, at *3 (Tenn. Ct. App. Dec. 19, 2007); see also 14D Charles Alan Wright, et al., Federal Practice & Procedure, § 3826 (3d ed. 2012) (stating that the "weight of judicial authority" is that, "when an objection has been raised, the burden is on the plaintiff to establish that the district he or she has chosen is a proper venue").

II. Propriety of Venue in Davidson County Circuit Court

Venue in Tennessee state court is governed by Tenn. Code Ann. § 20-4-104.5 Under that statute, a defendant corporation is subject to suit in the following venues:

Although not explicitly stated by the parties here, both sides appear to agree that venue is proper in Coffee County, Tennessee (a geographic area embraced by the Eastern District) under § 20-4-104(1), where "all or a substantial part of the events . . . giving rise" to the plaintiff's causes of action accrued. Thus, there is at least one proper venue within Tennessee.

The operative issue is whether, under § 20-4-104, venue is also appropriate in Davidson County, Tennessee, where the plaintiffs initially filed this case. Because KMC is not organized under the laws of Tennessee and does not maintain a registered agent for service of process here, §§ 20-4-104(2) and 20-4-104(3)(A) are plainly inapplicable. The remaining question is whether, under § 20-4-103(3)(B), KMC has an "agent for service of process" in a particular Tennessee county as prescribed by Tennessee statute.

Both parties agree that the court must look to Tenn. Code Ann. § 48-15-104 to make this determination. In relevant part, that law articulates four circumstances under which the Tennessee Secretary of State is statutorily defined as a corporation's "agent for service of process:" (1) a domestic or foreign corporation is authorized to do business in Tennessee but fails to appoint or to maintain a registered agent in Tennessee; (2) the corporation has a registered agent but that agent cannot be found with reasonable diligence; (3) a foreign corporation "transact[s] conduct or conduct[s] affairs in this state without first procuring a certificate of authority to do so from the secretary of state"; and (4) a foreign corporation previously possessed a certificate of authority but that authority was withdrawn or revoked. Tenn. Code Ann. § 48-15-104(b). The Tennessee Secretary of State is located in Davidson County; thus, if one of these four circumstances applies to KMC, then KMC's statutory default agent for service of process is the Tennessee Secretary of State and venue is proper here under § 20-4-104(3)(B).

Here, the plaintiffs simply quote § 48-15-104(b) and state, without explanation, that the Tennessee Secretary of State is therefore KMC's agent for service of process under Tennessee law. The plaintiffs have missed a necessary step: they fail to identify any provision of the law that purportedly applies to KMC or its operations. As KMC argues, none of the four categories set forth in § 48-15-104(b) applies to it: KMC is not authorized to do business in Tennessee, it has no registered agent in Tennessee (let alone an agent who cannot be located with reasonable diligence), it does not conduct business or affairs in Tennessee directly, and it did not have a certificate of authority that could have been revoked in the first place. Indeed, as KMC points out, in acknowledging that KMC must be served in compliance with the Hague Convention, the plaintiffs effectively concede that the Tennessee Secretary of State is not KMC's registered agent for service of process under Tennessee law.6 Moreover, it is insufficient for the plaintiffs merely to quote § 48-15-104(b) without applying it to KMC. In the absence of any meaningful showing that venue is proper in Davidson County under § 48-15-104(b)'s default provisions (incorporated by reference into § 20-4-104(3)(B)), the court finds that venue is not proper in Davidson County.

Having determined that venue is not proper, the court must determine whether to dismiss the case without prejudice or to transfer it in the interest of justice under § 1406(a). In Goldlawr, Inc., v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L. Ed. 2d 39 (1962), the Supreme Court found that district courts have ample discretion to transfer (rather than dismiss) cases under § 1406(a), "however wrong the plaintiff may have been in filing his case as to venue[.]" Here, the court has already issued a Case Management Order generally reflecting deadlines agreed to by the parties. KMC has not provided any rationale as to why dismissal, rather than transfer, is warranted here. Therefore, in the interest of justice, the court will exercise its discretion to transfer the case to the Winchester Division of the Eastern District under § 1406(a).7

CONCLUSION

For the reasons stated herein, the defendant's motion will be granted and this case will be transferred to the Winchester Division of the United States District Court for the Eastern District of Tennessee.

An appropriate order will enter.