Whether federal courts should apply a uniform standard for determining which party bears the burden of proving venue in a motion to dismiss under Rule 12(b)(3)

No question identified. : APPLICATION FOR EXTENSION OF TIME IN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO: The Honorable Brett M. Kavanaugh, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Sixth Circuit: Pursuant to 28 U.S.C. § 2101(c) and Rule 13.5 of the Rules of this Court, Applicant Karl Tobien respectfully requests an extension of forty-five (45) days in which to file a petition for a writ of certiorari in this case. The U.S. Court of Appeals for the Sixth Circuit issued its decision on April 2, 2025, followed by a minor technical correction on April 4, 2025. See Karl Tobien v. Nationwide General Insurance Co., 133 F.4th 613 (6th Cir. 2025); App. Exh. 2. The Sixth Circuit denied a petition for rehearing en banc on May 19, 2025. App. Exh. 1. Absent extension, the deadline for filing a petition for writ of certiorari is August 18, 2025. With the requested extension, the petition would be due on October 1, 2025. This application is being filed at least ten days before the petition is due. The jurisdiction of this Court will be invoked under 28 U.S.C. § 1254(1). In support of this application, Applicant states: 1. The petition for certiorari in this case will present a question that has produced a deep and persistent split among the federal courts of appeals: Which party bears the burden of proving proper venue? The court below expressly acknowledged this split, noting that “our sister circuits are .. . divided” on “who bears the burden of proof when venue is challenged as improper.” App. Exh. 2 at 4. As it explained, the Third, Seventh, and Eighth Circuits require the “defendant to prove that venue is improper.” Id.; see also, e.g., Myers v. Am. Dental Ass’n, 695 F.2d 716, 724 (3d Cir. 1982) (“[O]n a motion for dismissal for improper venue under Rule 12 the movant has the burden of proving the affirmative defense asserted by it.”); In re Peachtree Lane Assocs., Lid., 150 F.3d 788, 792 (7th Cir. 1998) (“[T]he party challenging venue bears the burden of establishing by a preponderance of the evidence that the case was incorrectly venued.”); United States v. Orshek, 164 F.2d 741, 742 (8th Cir. 1947). Moore’s Federal Practice Treatise, the panel below observed, also endorses this view. See App. Exh. 2 at 4 (citing 17 Moore’s Federal Practice § 110.01[5][c])). In contrast, the First, Second, and Sixth Circuits impose that burden on the plaintiff. App. Exh. 2 at 4-5; see also Cordis Corp. v. Cardiac Pacemakers, 599 F.2d 1085, 1086 (1st Cir. 1979) (“It should be noted that there is ample authority placing the burden of so doing on the plaintiff once a defendant has challenged venue by filing a motion to dismiss based on the lack thereof.”); Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005) (“If the court chooses to rely on pleadings and affidavits, the plaintiff need only make a prima facie showing of [venue]. But if the court holds an evidentiary hearing .. . the plaintiff must demonstrate [venue] by a preponderance of the evidence.”). Similarly, the Fourth and Eleventh Circuits ask the plaintiff to make a prima facie showing as to venue. See Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004) (“To survive a motion to dismiss for improper venue when no evidentiary hearing is held, the plaintiff need only make a prima facie showing of venue.”); Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990) (‘When a complaint is dismissed on the basis of improper venue without an evidentiary hearing, ‘the plaintiff must present only a prima facie showing of venue.”’) (quoting DeLong Equipment Co. v. Washington Mills Abrasive, 840 F.2d 843, 845 (11th Cir. 1988)). 2. As this Court has emphasized, “[w]here the burden of proof lies on a given issue is, of course, rarely without consequence and frequently may be dispositive to the . . . litigation.” Lavine v. Milne, 424 U.S. 577, 585 (1976). That describes the situation her