United States District Court, E.D. Texas, Sherman Division
REX REAL ESTATE I, L.P.
REX REAL ESTATE EXCHANGE, INC.
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
Rex Real Estate Exchange, Inc. has filed a Motion to Dismiss
or Transfer for Improper Venue (the “Motion to Dismiss
or Transfer”) (Dkt. #15) and a Motion for Hearing on
the Motion to Dismiss or Transfer (Dkt. #32). After careful
consideration, the Court concludes that the Motion to Dismiss
or Transfer will be granted to the extent described herein,
rendering the request for a hearing moot.
Rex Real Estate I, L.P. and Defendant Rex Real Estate
Exchange, Inc. are real estate companies that conduct
business in Texas. Plaintiff conducts business throughout the
state, though primarily focuses on North Texas. Defendant, on
the other hand, primarily operates in Austin, San Antonio,
and Houston, though also operates in cities outside of Texas
(Defendant's “Service Areas”). Plaintiff
alleges that Defendant uses Plaintiff's “unique and
proprietary trademarks, service marks and tradenames
‘REX' and ‘REX REAL ESTATE'” in
attempts to market to and solicit customers (Dkt. #1 at pp.
website (the “Website”) “allows sellers to
list residential homes for sale and allows potential buyers
to browse the homes that are listed” (Dkt. #15, Exhibit
2 at p. 2). Although the Website is accessible from any
location, “[i]f a user tries to list a home [outside of
its Services Areas] for sale, ” the Website
“reject[s] the user's attempt” to do so (Dkt.
#15, Exhibit 2). Defendant's Website will assist those
outside its Service Areas to purchase a home in those areas,
but no resident in the District has purchased a home through
the Website (Dkt. #15, Exhibit 2).
now seeks to either dismiss the action, or transfer it the
Western District of Texas, Austin Division, arguing that it
lacks any meaningful ties to the District. Defendant notes
that it does not have a physical office in the District, does
not employ District residents, and runs ads in newspapers and
on radio stations in Austin and San Antonio-even if Eastern
District residents may be exposed to some advertisements due
to the reach of some of those media outlets.
Rule of Civil Procedure 12(b)(3) allows a party to move to
dismiss an action for “improper venue.”
Fed.R.Civ.P. 12(b)(3). Once a defendant raises improper venue
by motion, “the burden of sustaining venue will be on
[the] Plaintiff.” Cincinnati Ins. Co. v. RBP Chem.
Tech., Inc., No. 1:07-CV-699, 2008 WL 686156, at *5
(E.D. Tex. Mar. 6, 2008). “Plaintiff may carry this
burden by establishing facts that, if taken to be true,
establish proper venue.” Id. (citations
omitted). The Court “must accept as true all
allegations in the complaint and resolve all conflicts in
favor of the plaintiff.” Mayfield v. Sallyport
Glob. Holdings, Inc., No. 6:16-CV-459, 2014 WL 978685,
at *1 (E.D. Tex. Mar. 5, 2014) (citing Ambraco, Inc. v.
Bossclip, B.V., 570 F.3d 233, 237-38 (5th Cir. 2009)).
In determining whether venue is proper, “the Court may
look beyond the complaint to evidence submitted by the
parties.” Ambraco, 570 F.3d at 238. If venue
is improper, the Court must 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); Fed.R.Civ.P. 12(b)(3).
moves to dismiss the case or transfer it to the Western
District of Texas, arguing that venue is improper under 28
U.S.C. § 1391. Section 1391(b) allows civil actions to
be brought in either:
(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 may otherwise
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). Plaintiff has failed to establish
that this District is proper under any of these prongs-even
accepting its allegations as true and resolving ...