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dismissing complaint under Rooker-Feldman and domestic relations exception to federal jurisdiction despite ongoing litigation in state family court
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04 Civ. 8228 (LAK) (AJP).
May 12, 2005
REPORT AND RECOMMENDATION
To the Honorable Lewis A. Kaplan, United States District Judge:
My March 23, 2005 Report and Recommendation ("Chase I"), familiarity with which is assumed, recommended dismissal of Chase's complaint, principally under the Rooker-Feldman doctrine. Chase v. Czajka, 04 Civ. 8228, 2005 WL 668535 (S.D.N.Y. Mar. 23, 2005) (Peck, M.J.). A week later, on March 30, 2005, the Supreme Court issued its decision in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., ___ U.S. ___, 125 S. Ct. 1517 (2005), limiting the scope of the Rooker-Feldman doctrine. On April 12, 2005, Judge Kaplan re-referred this matter to me to determine the effect of the Supreme Court's Exxon Mobil decision. Chase v. Czajka, 04 Civ. 8228, 2005 WL 850838 at *1 (S.D.N.Y. Apr. 12, 2005) (Kaplan, D.J.).
For the reasons set forth below, I adhere to my prior Report and Recommendation that defendants' motions to dismiss should be granted and plaintiff Chase's complaint dismissed as to all defendants, under a combination of the Rooker-Feldman doctrine and the domestic relations exception to federal jurisdiction. Furthermore, in the event the Court were not to dismiss under those grounds, the case should be transferred, pursuant to 28 U.S.C. § 1406(a), to the United States District Court for the Northern District of New York (where Columbia County is located), since venue in this District is improper pursuant to 28 U.S.C. § 1391(b).
FACTS
The facts are set forth at length in Chase I, 2005 WL 668535 at *1-4.
Plaintiff John T. Chase married defendant Kristin Fernandez Chase (hereafter "Fernandez") in April 2000. (Dkt. No. 1: Compl. ¶ 17.) Fernandez resides in Columbia County. (Compl. ¶ 4.)
Besides Fernandez, Chase has sued: Judge Paul Czajka, Family Court Judge in Columbia County (Compl. ¶¶ 3, 11), Columbia County Sheriff's Investigator Skype (Compl. ¶ 5), Columbia County Sheriff Walter Shook (Compl. ¶¶ 6), Columbia County itself (Compl. ¶ 7), Barbara Scarduzio, the Chase's babysitter in Columbia County (Compl. ¶ 8), and Fernandez's mother, Frances Fernandez (Compl. ¶ 9). Except for Frances Fernandez, who resides in Nassau County in the Eastern District of New York, all of the other defendants reside in the Northern District of New York. (See, e.g., Compl. ¶¶ 3-9; Dkt. No. 2: DeFio Aff. ¶¶ 5, 7; Dkt. No. 2: Columbia County Defs. Br. at 2; Dkt. No. 6: Gharty Aff. ¶¶ 4-5.)
Chase asserts that Fernandez conspired with defendant Family Court Judge Paul Czajka to obtain an "Ex Parte Order of Protection" issued on September 23, 2003, barring Chase from his home and son. (Compl. ¶¶ 25, 44; see also Compl. ¶¶ 28-32.)
Chase's complaint is replete with discussion about the state court divorce and child custody proceedings. (E.g., Compl. ¶¶ 3, 11-15, 18-19, 25-33, 35-43, 45-48.)
Chase's nine causes of action assert that: (1) defendants Fernandez and Judge Czajka conspired in a scheme to extort his money and property and deny him contact with his son (Compl. ¶¶ 45-48); (2) Fernandez slandered, libeled and defamed Chase by making false allegations of child sexual abuse in Columbia County (Compl. ¶¶ 50-52); (3) (4) Fernandez intentionally inflicted emotional distress on Chase by conspiring against him and defaming him with false allegations of child sexual abuse made to officials in Columbia County (Compl. ¶¶ 54-55, 59-60); (5) defendant Columbia County Sheriff's Investigator Skype conspired against Chase to derail a criminal investigation of Chase's allegations of bank fraud and embezzlement against Fernandez, and conspired with Fernandez to gather false evidence of child sexual abuse (Compl. ¶¶ 64-66); (6) defendant Columbia County Sheriff Walter Shook "tacitly authorized the action and conduct of Defendant Skype" (Compl. ¶ 71); (7) Columbia County, as a state actor, is liable for the acts of Family Court Judge Czajka (Compl. ¶¶ 75-79); (8) defendant Barbara Scarduzio, a friend of Fernandez and their child's babysitter, acted in common with Fernandez and Sheriff's Investigator Skype in a scheme to extort and defame Chase through allegations of child sexual abuse (Compl. ¶¶ 82-85); and (9) Fernandez' mother Frances Fernandez conspired with her daughter to extort money from and defame Chase. (Compl. ¶¶ 88-89.) Procedural History of the Fernandez-chase Matrimonial Child Custody Case
On September 23, 2003, Fernandez commenced a proceeding for Family Offense in Columbia County Family Court against Chase. (Dkt. No. 14: Schmidt Aff. ¶ 5 Ex. B; see Compl. ¶¶ 25, 28.) On October 7, 2003, after a hearing, Judge Czajka found Chase guilty of aggravated harassment, assault and attempted assault, and granted an order of protection requiring Chase to stay away from Fernandez and their son. (Schmidt Aff. ¶ 6 Ex. C; see Compl. ¶¶ 25, 28-32.)
Although a motion to dismiss, the Court is entitled to and does take judicial notice of the court records of Chase's divorce proceedings that are referred to in his complaint. See Chase I, 2005 WL 668535 at *2 n. 2 ( cases cited therein).
Chase commenced a matrimonial (divorce) action in Supreme Court, Albany County, on October 8, 2003. (Schmidt Aff. ¶ 12;see Compl. ¶ 33.)
In February 2004, an Article 10 neglect proceeding was brought against Chase by the Columbia County Department of Social Services. (Schmidt Aff. ¶ 7.) On March 4, 2004, in the Albany divorce action, Chase filed for custody relief, and Fernandez cross-moved for child support and maintenance. (Schmidt Aff. ¶ 2.) Justice Cannizzaro of Albany County Supreme Court referred the custody issue to Family Court, Columbia County, and the financial issues to Supreme Court, Columbia County. (Schmidt Aff. ¶ 2 Ex. A.) A hearing was conducted before defendant Family Court Judge Czajka on June 9, 2004, and in an oral decision Judge Czajka found Chase guilty of "neglect." (Schmidt Aff. ¶¶ 8-10 Ex. D.) Chase appealed the neglect order on September 9, 2004. (Schmidt Aff. ¶ 11 Exs. E-F.)
Chase also commenced state court proceedings related to the Family Court matter. (See generally Schmidt Aff. ¶ 12.) Chase sought a writ of habeas corpus in Supreme Court, Columbia County, seeking custody of his child and to transfer the Family Court case before Judge Czajka to Supreme Court. (Schmidt Aff. ¶¶ 12 Ex. G.) On August 27, 2004, Judge Hummel denied Chase's request to transfer custody and visitation matters from Family Court to Supreme Court, noting that "[i]t is clear from this record that [Chase] is unhappy with Judge Czajka and his handling of the Family Court petitions as evidenced by his unsuccessful motion to disqualify Judge Czajka. . . . [Chase's] proper remedy lies in an appeal to the Appellate Division, Third Department. At this juncture [Chase] is engaged in 'judge shopping.'" (Schmidt Aff. Ex. H: Judge Hummel 8/27/05 Order at 4-5.) This Order also denied Chase's motion to disqualify his son's law guardian, and his motion for a writ of habeas corpus for custody over his son. (Id. at 5.)
Chase also filed two motions to recuse Judge Czajka and a motion for a second writ of habeas corpus. (Schmidt Aff. ¶ 14 Ex. I.) The first recusal motion was denied, but the second motion (after commencement of this lawsuit) resulted in Judge Czajka being relieved from the Chase v. Chase action at his own request, and the Family Court case was re-assigned to Judge Hummel. (Schmidt Aff. ¶ 15 Ex. J; Dkt. No. 22: Chase 12/20/04 Aff. ¶ 24 Ex.: 11/30/04 Order relieving Judge Czajka and appointing Judge Hummel; Dkt. No. 34: Gharty 4/11/05 Aff. Ex. D: 11/16/04 Czajka Letter to Administrative Judge, requesting thatChase v. Chase case be reassigned to another judge.) Judge Hummel denied the habeas corpus petition on January 7, 2005. (Korenbaum Suppl. 1/12/05 Aff. ¶ 4 Ex. A: Judge Hummel 1/7/2005 Order.)
Family Court proceedings remain pending in Family Court, Columbia County, before Judge Hummel. (See Dkt. No. 27: Schmidt 1/7/05 Reply Aff. ¶ 4.) Chase's Affidavits Opposing Defendants' Motions to Dismiss
Plaintiff Chase submitted three affidavits in opposition to defendants' motions to dismiss. (Dkt. Nos. 22, 24, 29.) While arguing that defendants' motions should be denied, Chase's affidavits make clear that his present federal lawsuit is intended to raise the very matrimonial and child custody issues that have been decided and/or are pending in Columbia County Family Court.
For example, in opposing defendants' venue motion, Chase asserted that witnesses from Westchester Medical Center in this District are important witnesses, because they can testify that he did not sexually abuse his son and that Fernandez "coached" the child. (Dkt. No. 22: Chase 12/20/04 Aff. ¶¶ 10-13.) Chase also asserted that an employee of defendant Judge Czajka served papers on Chase in the divorce action and was "hanging out in [Chase's former] Kinderhook home" with Fernandez, and that "this conduct at the very least created an appearance of impropriety on the part of Defendant [Judge] Czajka in handling [Chase's] custody litigation." (Chase 12/20/04 Aff. ¶¶ 25-26; accord, Dkt. No. 24: Chase 12/30/04 Aff. ¶¶ 15-16.)
In his second affidavit, Chase asserted that Judge Czajka had a "conflict of interest" and that since Judge "Czajka has been relieved of all his obligations and duties relating to [Chase's] case, [Chase] believe[s] all of the underlying findings and orders by Defendant Czajka are now in question." (Dkt. No. 24: Chase 12/30/04 Aff. ¶¶ 4, 6.) Chase also asserted that his allegations in this case, about Fernandez's alleged attempts to extort money from him, and the testimony of personnel from Westchester Medical Center that he did not molest his son, have not been "determined or heard" in the matrimonial action. (Chase 12/30/04 Aff. ¶¶ 11-13; see also id. ¶¶ 17-18.) Chase protested that he is not seeking to litigate custody issues in the federal action, but rather to litigate over the wrongful conduct involved in the state court proceedings:
[I]t is not the issue of Custody that I am seeking to litigate in this Court as that is in state court. Instead, it is at least in part some of the wrongful conduct surrounding the custody determinations. . . .
(Chase 12/30/04 Aff. ¶ 14.)
Chase used his final affidavit to respond at length to the allegations that he physically abused Fernandez and sexually abused his son (Dkt. No. 29: Chase 1/31/05 Aff. ¶¶ 7-73, 80-82 Exs. A-H, J-L) — the very issues involved in Family Court in Columbia County.
Supplemental Papers Filed After the Exxon Mobil Decision
Both Chase and defendants filed additional papers after Judge Kaplan's April 12, 2005 Order, addressing the Exxon Mobil decision. (Dkt. No. 40: Defs. 4/22/05 Br.; Dkt. No. 41: Korenbaum 4/2/05 Aff.; Dkt. No. 42: Chase Supp. Resp.) Defendants' joint memorandum argued that the Exxon Mobil decision does not alter my application of the Rooker-Feldman doctrine to this case (Defs. 5/22/05 Br. at 4-6), concluding that:
While Rooker-Feldman does not bar a general constitutional challenge to a statute or rule, no such claims in raised here. Plaintiff [Chase] is simply presenting challenges to orders and decisions the state court entered in his divorce and child custody proceedings, disguised as a constitutional violation. As Magistrate Judge Peck found plaintiff [Chase] is seeking from this Court an order determining the validity of the underlying matrimonial and Family Court orders.
Plaintiff's [Chase's] complaint presents a typical Rooker-Feldman situation, as defined by the Supreme Court in Exxon Mobil, 'a loser in state court invited a federal district court to over turn a state-court judgement.' [Chase] is calling upon this Court to exercise appellate-jurisdiction over the state court judgments rendered prior to his commencing this federal action. Pursuant to the Rooker Feldman doctrine, such appellate jurisdiction over state court judgments is limited to the United States Supreme Court.
Defs. 4/22/05 Br. at 6 (citations omitted).
Chase's supplemental response argued that the Rooker-Feldman doctrine does not apply to his complaint because at the time his federal complaint was filed, "there was still on-going litigation in state court before Judge Paul Czajka" and "the state court litigation is still on-going and is therefore Not 'complete,' although now such litigation is before the Hon. Christian F. Hummel since Defendant Paul Czajka was removed from my case in state court." (Chase 5/5/05 Supp. Resp. ¶¶ 6, 7.) Chase stated that he is not complaining about a state court judgment, but that he has alleged an "illegal conspiracy" under 42 U.S.C. §§ 1983 1985, and is "not seeking an appellate review of the decision and orders of [Judge] Czajka." (Chase 5/5/05 Supp. Resp. ¶¶ 8, 9.) Chase also referred to issues relating to his state child-custody habeas corpus petitions, his child visitation rights and assertions that his ex-wife is engaging in "extreme parental alienation and psychological abuse," his dispute against his son's law guardian, and an argument that under New York law Judge Czajka's "prior rulings and orders and decision" should become "null and void" because he was removed or disqualified from the state court case. (Id. ¶¶ 19-21, 23, 25-27.) Among other things, Chase requested discovery as to why Judge Czajka was disqualified from his matrimonial/child custody case. (Id. ¶ 28.)
ANALYSIS
I. THE EXXON MOBIL DECISION DOES NOT ALTER THE COURT'S PRIOR RECOMMENDATION THAT CHASE'S FEDERAL CLAIMS ARE BARRED BY THE ROOKER-FELDMAN DOCTRINE AND THE DOMESTIC RELATIONS EXCEPTION TO FEDERAL JURISDICTION Exxon Mobil Corp. v. Saudi Basic Indus. Corp., ___ U.S. ___, 125 S. Ct. 1517 (2005), involved virtually simultaneous commercial lawsuits brought in state and federal court. See id. at 1525. Saudi Basic Indus. Corp. ("SABIC") sued Exxon Mobil subsidiaries in state court seeking a declaratory judgment that certain royalty charges were proper under their joint venture agreement, and two weeks later Exxon Mobil sued in federal court, alleging that SABIC overcharged the joint venture.See id. Exxon Mobil also asserted counterclaims in the state court action. See id. The state court action went to trial in March 2003, the jury returned a $400 million verdict for Exxon Mobil on the counterclaims, and SABIC appealed. See id. Meanwhile, before the state trial, SABIC had moved to dismiss the federal action under the Foreign Sovereign Immunities Act, which the district court denied, and SABIC filed an interlocutory appeal. See id. The Third Circuit heard argument after the state court judgment, and sua sponte raised theRooker-Feldman issue. The Third Circuit found that once Exxon Mobil's claims had been litigated to a judgment in state court,Rooker-Feldman precluded the federal district court from proceeding. See id. at 1526. The Supreme Court reversed.Id.The Supreme Court explained that:
When there is parallel state and federal litigation, Rooker-Feldman is not triggered simply by the entry of judgment in state court. This Court has repeatedly held that 'the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction.' Comity or abstention doctrines may, in various circumstances, permit or require the federal court to stay or dismiss the federal action in favor of the state-court litigation. But neither Rooker nor Feldman supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or related question while the case remains sub judice in federal court.
Disposition of the federal action, once the state-court adjudication is complete, would be governed by preclusion law. . . .
. . . .
This case surely is not the "paradigm situation on which Rooker-Feldman precludes a federal district court from proceeding."Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. at 1526-27 (citations omitted).
The Supreme Court in Exxon Mobil concluded by limiting use of the Rooker-Feldman doctrine to cases, like Rooker andFeldman, where the state court loser brings suit in federal court to overturn a state court judgment:
The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. at 1521-22. The Supreme Court also reiterated the holding inDistrict of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983), emphasizing that "[i]n a footnote, the [Supreme] Court explained that a district court could not entertain constitutional claims attacking a state-court judgment, even if the state court had not passed directly on those claims, when the constitutional attack was 'inextricably intertwined' with the state court's judgment." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. at 1523 n. 1 (quoting Feldman).
As explained in Chase I, "the basis of Chase's [federal] complaint concerns decisions made or pending before the Family Court, Columbia County, in Chase's divorce and child custody proceedings." Chase I, 2005 WL 668535 at *5. Before Chase commenced this action in October 2004, the state court had already found that Chase was guilty of neglect, ordered Chase to stay away from Fernandez and their son, gave custody of the child to Fernandez, and appointed a law guardian for the child. (See page 4 above.) As Judge Hummel noted in August 2004, some two months before Chase began his federal lawsuit, to the extent Chase is unhappy with Judge Czajka's rulings, the proper remedy lies in an appeal to the Appellate Division. (See page 5 above;see also Dkt. No. 41: Korenbaum 4/21/05 Aff. ¶¶ 6-8.) In fact, Chase has filed two state court appeals from Judge Czajka's rulings. (Korenbaum 4/21/05 Aff. ¶ 6.) Moreover, to the extent Chase's federal suit challenges Judge Czajka's handling of Chase's matrimonial and child custody proceedings, it is important to note that immediately after this federal suit was filed, Judge Czajka withdrew from handling Chase's state domestic relations suites. (See page 5 above.) Thus, Judge Czajka's role in the state proceedings is completed, and is the subject of state appeals. (See also Korenbaum 4/21/05 Aff. ¶ 9.)
Indeed, Chase's supplemental papers addressing Exxon Mobil also are replete with references to the state court proceedings, including his request for discovery on the reason Judge Czajka disqualified himself from Chase's state case and on how Judge Czajka conducted the state proceedings. (Dkt. No. 42: Chase 5/5/05 Supp. Resp. ¶¶ 6-7, 9, 12-16, 20-30.)
While Chase is correct that his state court case has not been completely decided, his federal claims are inextricably intertwined with the family court and state court decisions and judgments to date. Thus, if this Court were to exercise jurisdiction over Chase's complaint, consideration of claims that were decided by Judge Czajka and Judge Hummel in Family Court, Columbia County, (or that are pending before Judge Hummel) would be inevitable. Chase's claims are "inextricably intertwined" with his state court matrimonial and child custody proceedings; by asserting claims pursuant to 42 U.S.C. §§ 1983 1985 over his dissatisfaction with state court decisions and judgments, Chase is merely bringing "constitutional claims attacking a state-court judgment" which cannot be reviewed by this Court. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125 S. Ct. at 1523 n. 1;see also, e.g., Washington v. Wilmore, No. 04-1818, ___ F.3d ___, 2005 WL 977009 at *5 (4th Cir. Apr. 28, 2005) (Holding, post-Exxon Mobil, that "[t]he Rooker-Feldman doctrine bars lower federal courts from considering not only issues raised and decided in the state courts, but also issues that are 'inextricably intertwined' with the issues that were before the state court. 'The "inextricably intertwined" prong of the doctrine bars a claim that was not actually decided by the state court but where success on the federal claim depends upon a determination that the state court wrongly decided the issues before it.'"); Amaya v. Pitner, Nos. 04-2510, 04-2603, 2005 WL 773967 at *1 (7th Cir. Apr. 4, 2005) (Citing Exxon Mobil, "Rooker and Feldman hold that federal jurisdiction to review state court decisions in civil litigation — and claims that are 'inextricably intertwined' with such decisions — is limited to the Supreme Court's certiorari power under 28 U.S.C. § 1254.").
Even if Exxon Mobil cast some doubt on the applicability of the Rooker-Feldman doctrine here, the interplay of that doctrine and the domestic relations exception to federal jurisdiction requires dismissal of Chase's federal action. As the Supreme Court explained just last term in Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 2309 (2004), "[s]o strong is our deference to state law in this area that we have recognized a 'domestic relations exception' that 'divests the federal courts of power to issue divorce, alimony, and child custody decrees.' We have also acknowledged that it might be appropriate for the federal courts to decline to hear a case involving 'elements of the domestic relationship,' even when divorce, alimony, or child custody is not strictly at issue. . . . [I]n general, it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.") (citations omitted). To the extent that any of Chase's federal claims are not barred by the Rooker-Feldman doctrine itself yet are matrimonial in nature or on the verge of being matrimonial in nature, the Court should at a minimum abstain from exercising discretion over them. The Second Circuit "has stated that federal courts have discretion to abstain from exercising jurisdiction over issues on the verge" of being matrimonial in nature as long as full and fair adjudication is available in state courts."Mitchell-Angel v. Cronin, No. 95-7937, 101 F.3d 108 (table), 1996 WL 107300 at *2 (2d Cir. Mar. 8, 1996) (internal quotations omitted, quoting American Airlines Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990)), cert. denied, 519 U.S. 897, 117 S. Ct. 244 (1996). Like Chase, the plaintiff in Mitchell-Angel alleged that the other players in her divorce and custody proceedings were engaged in a conspiracy to "deprive her of her children's companionship and affections" which the court held related "solely to the appropriateness of the child custody decree." 1996 WL 107300 at *2; see also, e.g., Melnick v.Adelson-Melnick, 346 F. Supp. 2d 499, 505 (S.D.N.Y. Nov. 15, 2004) (Kaplan, D.J.) ("Plaintiff does not here seek a divorce, alimony or custody decree. The case therefore probably does not come within the domestic relations exception. Nevertheless, the case is 'on the verge' of a matrimonial dispute and in any case a paradigmatic one for abstention."); Rabinowitz v. New York, 329 F. Supp. 2d 373, 376 (E.D.N.Y. 2004) ("Here, in large measure, the plaintiff seeks to obtain the same relief he sought in state court, namely, custody of his children. If this Court were to allow the plaintiff to pursue this action, it would be forced to 're-examine and re-interpret all the evidence brought before the state court' in the earlier proceedings. As such, this action is barred by the domestic relations exception to this court's jurisdiction.") (citations omitted); Bleiberg v. Altvater, 01 Civ. 11507, 2002 WL 1339097 at *2 (S.D.N.Y. Jun. 19, 2002);Torres v. Family Court/Admin. for Children's Servs., 01 Civ. 4351, 2001 WL 1111510 at *2 (S.D.N.Y. Sept. 20, 2001) ("[D]istrict courts in this circuit have held that the [domestic relations] exception includes civil rights actions directed at challenging the results of domestic relations proceedings. . . . Though [plaintiff's] claims are brought pursuant to 42 U.S.C. § 1983, this Court will not intervene in ongoing state proceedings."); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *9 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.), aff'd, No. 01-7577, 23 Fed. Appx. 82, 2002 WL 4594 (2d Cir. Dec. 21, 2001); Elmasri v. England, 111 F. Supp. 2d 212, 220-21 (E.D.N.Y. 2000).
II. IF THE CASE IS NOT DISMISSED, IT SHOULD BE TRANSFERRED PURSUANT TO 28 U.S.C. § 1406 TO THE NORTHERN DISTRICT OF NEW YORK, BECAUSE VENUE DOES NOT LIE IN THIS DISTRICT
Defendants also had moved to dismiss for improper venue or transfer to the Northern District of New York. (Dkt. Nos. 2-3, 5-7, 12.) Because venue was not proper in this District, if the Court does not dismiss the action for the reasons discussed in Point I above, the Court should transfer the case to the United States District Court for the Northern District of New York pursuant to 28 U.S.C. § 1406(a).
Section 1406(a) provides:
The district court of a district in which is filed a case laying venue in the wrong division or district shall 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).
The venue statute provides:
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(b).
As to § 1391(b)(1), while plaintiff resides in New York County, that is irrelevant — it is defendants' residence that is significant, and all defendants reside in Columbia County, in the Northern District of New York. (See page 2 above.)
As to § 1391(b)(2), it is clear that the "substantial part of the events" giving rise to Chase's complaint occurred in Columbia County (or Albany County).
Obviously, the state court proceedings and decisions about which Chase complains all occurred in Columbia (or Albany) County. (See pages 4-5 above.) The Sheriff's and Sheriff's investigator's actions took place in Columbia County. (See also Dkt. No. 2: Shook Aff. ¶¶ 3, 5; Dkt. No. 2: Skype Aff. ¶¶ 3-5.) The allegations that Chase's ex-wife, Fernandez, conspired with others to defame him by making false child sexual abuse charges involved charges made to Columbia County agencies (e.g. Compl. ¶¶ 26, 31, 51, 54, 82-85) or in state court proceedings in Columbia (or Albany) County.
While plaintiff asserts that there are witnesses at Westchester Medical Center to Fernandez's "coaching" of their son about sexual abuse (e.g. Compl. ¶ 41; see also Dkt. No. 22: Chase 12/20/04 Aff. ¶¶ 10-13), whether such coaching occurred isnot a "substantial part of the events" giving rise to any asserted claim. See, e.g., Daleus v. Kovelesky, 98 Civ. 9628, 1998 WL 856077 at *1 (S.D.N.Y. Dec. 7, 1998). Moreover, to the extent it involves the issue of Chase's sexual abuse of his child, that issue has already been litigated and determined in state court and is certainly covered by the domestic relations exception to jurisdiction.
While Chase now appears to "live" in New York City, it is not clear that that is his residence. Even if it is, since Chase lives in New York City and chose this District as the forum, the Court would not transfer on the basis of 28 U.S.C. § 1404(a), i.e., a transfer for "convenience." That is not the issue, however. Even though Chase now lives here, as noted above, venue is not based on his but on defendants' residence(s), which is Columbia County. Since the substantial part (if not all) of the events giving rise to Chase's claims occurred in Columbia County (and not within this District), venue is not proper in this District and the Court must transfer (or dismiss) pursuant to 28 U.S.C. §§ 1391(b) and 1406(a).
Compare Dkt. No. 44: Gharty 4/11/05 Aff. ¶¶ 4-5 Ex. B (Chase Absentee Ballot Application for Columbia County), with Dkt. No. 42: Chase 5/5/05 Supp. Resp. ¶¶ 31-32 (While he still owns the Columbia County house, he was "forced by [the state court] order to find a new residence and took up residency in Manhattan.").
Accordingly, if the case is not dismissed under theRooker-Feldman doctrine and/or the domestic relations exception, the case should be transferred to the Northern District where venue is proper, since venue was not proper in this District.
CONCLUSION
For the reasons stated above, and in Chase I, defendants' motions to dismiss should be granted and plaintiff Chase's complaint dismissed in its entirety as to all defendants. Alternatively, if the case is not dismissed, it should be transferred to the United States District Court for the Northern District of New York.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).