Smith v. Konsak

230 F. Supp. 308, 1964 U.S. Dist. LEXIS 6968

• Court: District Court, E.D. Pennsylvania
• Decided: June 5, 1964
• Docket: Civ. A. No. 34992
• Status: Published

Opinion

WOOD, District Judge.

The defendant, George F. Flowers (Flowers), a resident of the Western District of Pennsylvania, has filed a motion to dismiss this motor vehicle action as to him for improper venue under 28 U.S.C.A. § 1391(a). This section states that a diversity action may be brought only in the judicial district where all the plaintiffs or all the defendants reside except as otherwise provided by law.

The remaining defendants, Raymond Konsak and Interstate Freight System, oppose this motion to dismiss. These two defendants are citizens of the States of New Jersey and Michigan, respectively, and they have waived any de-

fects of venue in this District by withdrawing their own motion to dismiss and opposing the instant motion. Venue unlike jurisdiction is a personal privilege available to each individual litigant which can be waived by conduct. Thompson v. United States, 312 F.2d 516, 519 (10 Cir. 1962), cert. denied 373 U.S. 912, 83 S. Ct. 1303, 10 L.Ed.2d 414 (1963); DeGeorge v. Mandata Poultry Company, 196 F.Supp. 192, 196 (E.D.Pa.1961).

Therefore, the only venue question remaining is limited to whether Flowers may properly be sued in this District.

Under a recent amendment to the venue statute, 28 U.S.C.A. § 1391(f), a civil action on a tort claim arising out of the operation or use of an automobile may be brought in the judicial district wherein the act occurred.

This action arose out of a motor vehicle collision which occurred on Route 30 about six and one-half miles east of Lancaster, Pennsylvania, which is within the Eastern District of Pennsylvania. Accordingly, the defendant Flowers’ motion is not well taken and must be denied.