Filed: Sep. 27, 2016
Latest Update: Sep. 27, 2016
Summary: OPINION & ORDER [Resolving Doc. 11] JAMES S. GWIN , District Judge . On February 25, 2015, Plaintiff Nora L. Mihelick filed a complaint in the Northern District of Ohio against Defendant United States seeking a tax refund under 26 U.S.C. 7442. 1 Plaintiff resides in Fort Meyer, Florida, 2 located in the Middle District of Florida. On July 21, 2016, Defendant United States filed a motion to dismiss for improper venue. 3 Plaintiff argues that venue in the Northern District of Ohio is pr
Summary: OPINION & ORDER [Resolving Doc. 11] JAMES S. GWIN , District Judge . On February 25, 2015, Plaintiff Nora L. Mihelick filed a complaint in the Northern District of Ohio against Defendant United States seeking a tax refund under 26 U.S.C. 7442. 1 Plaintiff resides in Fort Meyer, Florida, 2 located in the Middle District of Florida. On July 21, 2016, Defendant United States filed a motion to dismiss for improper venue. 3 Plaintiff argues that venue in the Northern District of Ohio is pro..
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OPINION & ORDER [Resolving Doc. 11]
JAMES S. GWIN, District Judge.
On February 25, 2015, Plaintiff Nora L. Mihelick filed a complaint in the Northern District of Ohio against Defendant United States seeking a tax refund under 26 U.S.C. § 7442.1 Plaintiff resides in Fort Meyer, Florida,2 located in the Middle District of Florida.
On July 21, 2016, Defendant United States filed a motion to dismiss for improper venue.3 Plaintiff argues that venue in the Northern District of Ohio is proper, and, if it is not, the Court should transfer the case to the Middle District of Florida.4
For the following reasons, the Court DENIES Defendant's motion to dismiss for improper venue and transfers the case to the Middle District of Florida.
Under Federal Rule of Civil Procedure 12(b)(3), a party may move to dismiss a case when venue is "improper" in the forum in which it was brought.5 If venue is improper in the forum selected by plaintiff, a district court can either dismiss the case or, "if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."6
When a plaintiff seeks a tax refund under 26 U.S.C.A § 7422(a), the statutory grant of jurisdiction is found in 28 U.S.C.A § 1346(a)(1). The applicable venue statute for § 1346(a)(1) actions is 28 U.S.C.A. § 1402. Under § 1402, a case "may be prosecuted only . . . [e]xcept as provided in paragraph (2), in the judicial district where the plaintiff resides."7 Paragraph 2 provides that "[in] the case of a civil action by a corporation . . . a district court, for the convenience of the parties and witnesses, in the interest of justice, may transfer any such action to any other district or division."8
Plaintiff argues that venue is proper in the Northern District of Ohio pursuant to 28 U.S.C.A. § 1402(a)(2), which provides that "for the convenience of the parties and witnesses, in the interest of justice, may transfer any such action to any other district or division."9 The language in paragraph 2, however, applies only to cases brought by corporate plaintiffs.10 When an individual plaintiff brings suit for a tax refund, venue is only proper where the individual resides.11 Therefore, venue is proper in this case only in the Middle District of Florida.
Defendant argues that because Plaintiff improperly filed her case in this Court, her claim must be dismissed. Plaintiff argues that the case should be transferred to the Middle District of Florida in the interest of justice.12 This Court agrees with Plaintiff.
The interest of justice requires transferring rather than dismissing a case.13 Plaintiff timely filed her lawsuit here and would be time-barred from refiling if the Court dismissed the case.14 Accordingly, Defendant's motion to dismiss is DENIED and Plaintiff's claim is transferred to the Middle District of Florida pursuant to 28 U.S.C.A. § 1406(a).15
IT IS SO ORDERED.
