Federal Class Action Antitrust: Motion to Dismiss for Improper Venue Pursuant to Fed. R. Civ. P. 12(b)(3) — When and How?

By Christopher Brainard – Team Leader, California-Based Antitrust and Business Litigation Counsel

In federal class-action antitrust litigation, it's common for plaintiffs to file cases in jurisdictions that seem advantageous to them—but may have no legitimate connection to the defendants. When your organization is sued in a federal court far from where you do business, one of your most effective early defenses is a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3).

Used correctly, this procedural motion can eliminate the burden of litigating in an inappropriate forum or force the plaintiff to refile in a jurisdiction that actually makes sense.

⚖️ What Does Rule 12(b)(3) Do?

Rule 12(b)(3) allows a defendant to challenge a lawsuit filed in the wrong federal venue. That means the court may not be the proper place to hear the case—even if it has subject matter jurisdiction and personal jurisdiction over the parties.

Venue is determined by federal statutes that ensure litigation takes place in a district with a logical connection to the parties or the events in dispute. If venue is improper, the court can either:

  • Dismiss the case outright, or

  • Transfer it to a more appropriate venue under 28 U.S.C. § 1406(a)

🧠 Why Venue Matters in Class-Action Antitrust Litigation

Venue is especially important in federal antitrust class actions, because these cases often:

  • Name dozens of defendants across multiple industries

  • Are filed in strategic (or sympathetic) jurisdictions by national plaintiffs’ firms

  • Rely on minimum contacts or speculative allegations to justify forum choice

But under 15 U.S.C. § 22, a corporate defendant may only be sued in:

  1. The district where it resides (i.e., is incorporated),

  2. Or where it is found or transacts business

If your company has no substantial operations or presence in the forum, venue may be improper—and Rule 12(b)(3) is your tool to assert that defense.

✅ When Should You File a Rule 12(b)(3) Motion?

You should consider a 12(b)(3) venue challenge when:

1. Your Business Doesn’t Operate in the Forum

If your company:

  • Is not registered to do business in the state

  • Has no physical offices, employees, or assets there

  • Doesn’t advertise, sell to, or contract with residents of that forum

  • Has no sustained or regular commercial activity in the district

…then venue is likely improper under both the antitrust venue statute and general federal venue rules.

2. The Complaint Relies on False or Speculative Claims About Jurisdiction

Many class actions assert that a defendant "controls" or "founded" a business entity in the forum—but these allegations may be categorically false or exaggerated. Rule 12(b)(3) allows you to challenge venue without admitting to or engaging in fact discovery.

A well-drafted declaration from a company officer (backed by registration documents, tax records, or other corporate proof) can rebut such claims effectively.

3. Plaintiffs Are Engaging in Forum Shopping

When plaintiffs file in jurisdictions known for being plaintiff-friendly (e.g., certain federal districts in Florida, California, or New York), they may do so without a real connection to the defendants. Forum shopping undermines fairness, and Rule 12(b)(3) is a procedural safeguard against it.

🧾 What Counts as “Transacting Business” in a Federal Venue?

The term “transacting business” under 15 U.S.C. § 22 requires a showing of substantial, regular, and continuous operations in the district—not just incidental contact.

“Sporadic or meager dealings are not enough.”
— King v. Johnson Wax Assocs., Inc., 565 F. Supp. 711, 716 (D. Md. 1983)

In other words, selling a product online to one customer in the district or maintaining a passive website is not enough to satisfy venue under antitrust law.

🔄 What Happens After a Successful Rule 12(b)(3) Motion?

If the court finds venue improper, it will either:

  • Dismiss the action entirely, or

  • Transfer it to a proper venue “in the interest of justice”

This can:

  • Eliminate the case entirely (if transfer is not feasible)

  • Move the case to a venue that is more favorable to your business

  • Force plaintiffs to incur additional cost and delay

  • Level the playing field for your defense

🧩 12(b)(3) vs. Personal Jurisdiction (12(b)(2))

Don’t confuse improper venue with lack of personal jurisdiction. These are distinct defenses:

  • 12(b)(2) challenges whether the court has legal authority over the defendant

  • 12(b)(3) challenges whether the lawsuit is filed in the correct location under venue statutes

The two often go hand-in-hand—but each must be raised early, or the defense may be waived.

📂 What You Need to Support a Rule 12(b)(3) Motion

To support a venue challenge, your legal team should assemble:

  • A sworn declaration from an officer or principal

  • Proof of business registration (or lack thereof)

  • Evidence of where your company’s operations and clients are located

  • Marketing history, digital footprint, and contractual documents

  • Confirmation of any lack of connection to the forum state or district

We Help Businesses Defend Themselves—Where It Actually Makes Sense

At LawBrainard, we defend businesses, associations, and professionals in federal class-action litigation with a sharp focus on venue, jurisdiction, and early motion strategy.

If your organization has been sued in the wrong place—or is facing an antitrust complaint that lacks a factual basis—we can help you:

  • Analyze and assert improper venue defenses

  • Prepare Rule 12(b)(3) and 12(b)(6) motions

  • Develop factual declarations to support dismissal

  • Push back against overreaching claims and forum shopping

  • Avoid the disruption and expense of litigating in an unfair venue

📞 Call us at (310) 266-4115
🌐 Visit: www.LawBrainard.com
🗓 Schedule a consultation with our litigation team to assess your case.

This article/blog is provided for informational and educational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship between you and Christopher Brainard, Esq. An attorney-client relationship can only be formed through a written and signed agreement with Christopher Brainard. If you need legal advice about your specific situation contact us for a consultation. [Christopher Brainard, 651 N. Sepulveda Blvd., #2010, Bel Air, CA 90049. Tel: (310) 266 - 4115. Email: christopherbrainard@gmail.com].

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