Federal Litigation: Motion to Dismiss for Improper Venue Fed. R. Civ. P. 12(b)(3) When and How to Use It.

By Attorney Christopher Brainard – Federal Litigation and Business Counsel

In federal civil litigation, where a lawsuit is filed can be just as important as what it alleges. If your company or organization is sued in a jurisdiction where it doesn’t operate—or where the plaintiff is simply trying to gain tactical advantage—you may have strong grounds to dismiss under Rule 12(b)(3) for improper venue.

This article explains what Rule 12(b)(3) covers, how it differs from personal jurisdiction, and when a motion to dismiss based on improper venue should be part of your early litigation strategy.

⚖️ What Is Rule 12(b)(3)?

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move for dismissal of a lawsuit on the grounds of improper venue. That means the case has been filed in a federal district where it legally should not have been brought.

Venue rules are designed to ensure that cases are filed in a district that has a logical connection to the events, parties, or claims. Filing in the wrong venue can force a business to litigate far from home—increasing costs, disrupting operations, and skewing the fairness of the process.

🧭 When Is Venue Considered Improper?

Venue in federal antitrust cases is governed by 15 U.S.C. § 22, which allows a defendant to be sued:

  1. In any district where it resides

  2. Or where it is found or transacts business

If none of those conditions are met, venue is improper, and the defendant has a right to object under Rule 12(b)(3).

For venue to be proper under the “transacts business” standard, the defendant must engage in substantial, regular, and continuous business operations in the district—not merely occasional or passive contacts.

“Meager, sporadic dealings within the district are not sufficient.”
— King v. Johnson Wax Assocs., Inc., 565 F. Supp. 711, 716 (D. Md. 1983)

🧠 Strategic Uses of a 12(b)(3) Venue Challenge

Here’s when Rule 12(b)(3) can become a powerful tool:

✅ 1. Your business does not operate in the district

If you’re sued in a federal district where:

  • You are not registered to do business

  • You have no employees, offices, or assets

  • You have no clients, contracts, or sales

  • You maintain no substantial, continuous presence

…then you likely do not “transact business” there under the federal venue statutes.

✅ 2. Plaintiff is forum shopping

Sometimes plaintiffs file in a district because they believe the court is more favorable—even if the defendant has no meaningful connection to that location. This tactic is known as forum shopping, and Rule 12(b)(3) is one of the best defenses against it.

✅ 3. Your organization is state-specific

If your company or nonprofit operates only within one state (e.g., all clients, staff, or activities are based in California), there is no justification for facing suit across the country. You should not be hauled into a foreign court unless the law clearly allows it.

🛠 How to Prove Improper Venue

A Rule 12(b)(3) motion should be supported with:

  • A declaration from a company officer

  • Evidence of business registration and licensing

  • Proof of geographic limitation of services

  • Lack of physical or economic footprint in the district

  • No marketing, employees, or operations in the forum

In a recent case, a nonprofit association based entirely in California successfully moved for dismissal when sued in Florida federal court. The plaintiff falsely alleged a connection to a Florida-based MLS, but the defendant had:

  • No offices or employees in Florida

  • No Florida sales, customers, or advertising

  • No Florida registration or bank accounts

  • No property or contracts in Florida

  • And no officers or board members residing in Florida

The court had no proper basis to hear the case there, and venue was successfully challenged under Rule 12(b)(3).

⚠️ How 12(b)(3) Differs from 12(b)(2) – Personal Jurisdiction

It’s important to distinguish between:

  • Personal jurisdiction (12(b)(2)) – does the court have power over the defendant?

  • Venue (12(b)(3)) – is this the right location for the case?

A district might have personal jurisdiction (e.g., because of a contract or web presence), but still be an improper venue under federal venue rules.

Unlike jurisdiction, venue objections can often be waived if not raised early. That’s why it’s critical to assert Rule 12(b)(3) in your first response.

🧾 What Happens If Venue Is Improper?

If the court agrees, it has two options under 28 U.S.C. § 1406:

  • Dismiss the case entirely, or

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

This means that a successful motion doesn’t always end the case—but it can force the plaintiff to refile in a fairer, more appropriate court. And that can dramatically shift the balance in your favor.

Let LawBrainard Protect You From Being Dragged Into the Wrong Court

If your company is facing federal litigation in an unfamiliar jurisdiction—especially if you're out-of-state and don't do business there—you may have a solid Rule 12(b)(3) defense.

At LawBrainard, we help clients:

  • Challenge improper venue and jurisdiction

  • Prepare sworn declarations and documentary support

  • Assert strategic defenses under the Federal Rules

  • Avoid unnecessary litigation in far-flung venues

📞 Call (310) 266-4115
🌐 Visit: www.LawBrainard.com
🗓 Schedule a consultation to protect your rights and control your forum.

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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