Defendants should have the burden of proof on a motion to dismiss for improper venue. A split of authority exists on this issue. 14D Charles Alan Wright, et al., Federal Practice and Procedure § 3826, at pp. 555-62 (3d ed. 2007). In our jurisdiction, the federal courts, unfortunately, have not ruled on the issue. See Burns v. Events & Transportation Assocs, Inc., No. 08-713 LH/RHS, at 3 (D.N.M. Dec. 15, 2008) (not resolving the issue but noting split of authority in circuits and lack of decision by Tenth Circuit). However, the better reasoned view is that the defendant has the burden of proof in establishing that the venue is improper. See In re Peachtree Lane Assocs., Ltd., 150 F.3d 788, 798 (7th Cir. 1998); Myers v. American Dental Ass’n, 695 F.2d 716, 724 (3rd Cir. 1982); Bartholomew v. Virginia Chiropractors Ass’n, 612 F.2d 812, 816 (4th Cir. 1979); Long John Silver’s, Inc. v. Diwa III, Inc., 650 F.Supp.2d 612, 630 (E.D. Ky. 2009); Simon v. Ward, 80 F.Supp.2d 464, 466-468 (E.D. Pa. 2000); 17 James Wm. Moore et al., Moore’s Federal Practice § 110.01[c] (3d ed. 2010).
It is a defendant’s responsibility to timely object to plaintiff’s choice of venue. Otherwise, it waives that defense. Fed. R. Civ. P. 12(h)(1). Because a defendant must raise the issue of venue, a motion to dismiss for improper venue should be treated as an affirmative defense, and the defendant must bear the burden of proof that the venue is improper. See Pacer Global Logistics v. National Passenger Railroad Corp., 272 F.Supp.2d 784 at 788 (E.D.Wis. 2003); Strickland v. Trion Group, Inc., 463 F.Supp.2d 921, 925 (E.D.Wis. 2006); Myers, at 724-725. When a defendant seeks the dismissal of a case based on the personal privilege of venue, proof should be required to establish the privilege. Moore et al., § 110.01[c].
We recently briefed this issue in the Tenth Circuit. However, the case settled after we filed our Opening Brief.