Opinion
No. C 00-2484 MMC.
August 23, 2004
ORDER TRANSFERRING ACTION
Before the Court is plaintiffs' response to the Court's order, filed July 8, 2004, to show cause why the remaining claim in the above-titled action should not be dismissed or transferred to a district in which such claim could have been brought, as well as defendants' reply to plaintiffs' response.
The Ninth Circuit has held that this Court has pendent venue over plaintiffs' remaining claim, a claim for violation of the Postal Service Procurement Manual. See Flamingo Industries (USA) v. United States Postal Service, 302 F.3d 985, 997-98 (9th Cir. 2002). Plaintiffs, in their response to the order to show cause, fail to show why the Court should continue to exercise pendent venue over the remaining claim in light of the dismissal of plaintiffs' antitrust claims. Accordingly, for the reasons set forth in the Court's order of July 8, 2004, the Court declines to continue to exercise pendent venue over the Procurement Manual claim.
In their response, plaintiffs, for the first time, contend that the Court should exercise independent venue over the remaining claim. Specifically, plaintiffs rely on 28 U.S.C. § 1391(e), which provides, in relevant part, that a civil action against a federal agency may be brought in a district in which "a substantial part of the events or omissions giving rise to the claim occurred." See 28 U.S.C. § 1391(e)(2). Plaintiffs state that their contracts with defendant were performed in the Northern District, i.e., the mail sacks plaintiffs produced for defendant were manufactured at a site in this District, that agents of defendant inspected the site in this District, and that defendant sent payment checks to plaintiff from locations in this District. (See Pls.' Response, filed July 30, 2004, at 3.)
At the outset, the Court observes that none of the events on which plaintiffs rely are alleged in the complaint and that plaintiffs offer no admissible evidence to establish such events occurred. In any event, assuming, arguendo, such events occurred in this District, "[i]n assessing whether events or omissions giving rise to the claims are substantial, it is necessary to look at the nature of the dispute." See Cottman Transmission Systems v. Martino, 36 F. 3d 291, 295 (3rd Cir. 1994). The Court finds that plaintiffs have failed to establish that the events on which plaintiffs now rely constitute a "substantial part of the events or omissions giving rise to the claim" at issue, i.e., that defendant did not comply with provisions in the Procurement Manual.
In their complaint, plaintiffs allege that the contract was performed in "California." (See Compl. ¶ 1.)
First, although the place of performance of the contract may be an important factor in determining venue for a breach of contract claim, see, e.g., Pro Spice, Inc. v. Omni Trade Group, Inc., 173 F. Supp. 2d 336, 339-40 (E.D. Pa. 2001), plaintiffs have previously clarified that the claims in the original complaint, which would include the instant claim, are not based on "allegations of breach of [the two] contracts." (See Wah Decl., filed February 9, 2001, ¶ 3.)
Second, with one exception, plaintiffs have not provided the Court with the language of the provisions of the Procurement Manual on which the claim is based, thereby precluding a meaningful assessment of whether the events on which plaintiffs now rely constitute a substantial part of the events giving rise to the claim. Moreover, the one exception is of no assistance to plaintiffs with respect to the question of venue. Plaintiffs allege there exists a provision in the Procurement Manual prohibiting defendant from purchasing products with a certain percentage of lead, (see Compl. ¶ 63), and that defendant violated the provision by purchasing mail sacks from a supplier whose sacks contained lead in an amount above that allowed under that provision, (see id.). Plaintiffs have not shown that a substantial part of this claim arises from events that occurred in this District, as plaintiffs have offered no evidence to counter defendant's showing that defendant's decision concerning the "lead" provision was made by its agents in the District of Columbia. (See Kenny Decl., filed January 12, 2001, ¶¶ 2, 6, Ex. A at 5.) Indeed, plaintiffs concede that defendant "made some decisions in Washington D.C.," (see Pls.' Response at 5), and do not offer evidence, argue in their response, or allege in the complaint that any decision pertinent to the "lead" provision was made in this District.
Third, to the extent the Court can, from the allegations in the complaint, infer the general nature of other relevant provisions in the Procurement Manual, plaintiffs fare no better. Plaintiffs appear to allege that defendant violated a provision or provisions in the Procurement Manual by changing the "specifications" for the mail sacks defendant sought to purchase from a supplier, (see Compl. ¶ 58); and by awarding a contract to a supplier who employs "Mexican labor" (see Compl. ¶ 59), produces mail sacks "100 percent in Mexico," (see Compl. ¶ 64), and whose mail sacks are not "fully recyclable" and contain "nylon," (see Compl. ¶ 62). Plaintiffs, however, have not shown that a substantial part of a claim that defendant acted improperly in changing its specifications and/or by awarding the contract to the selected supplier arises from events that occurred in this District.
Plaintiffs have the burden to establish that venue is proper.See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). For the reasons discussed above, the Court finds that plaintiffs have not met their burden to show independent venue in this District over the Procurement Manual claim.
The remaining issue is whether the remaining claim should be dismissed or, "if it be in the interest of justice," transferred to a district in which it could originally have been brought.See 28 U.S.C. § 1406(a). If the Court were to dismiss the claim, thereby requiring plaintiffs to refile it in another district, the claim might no longer fall within the "savings provision" applicable to 28 U.S.C. § 1491(b)(1). See Flamingo Industries, 302 F. 3d at 994 (explaining district courts lack jurisdiction over claims arising from violations of procurement manuals if filed on or after January 1, 2001). Accordingly, the Court finds that it is in the interest of justice to transfer the matter to the district plaintiffs have identified, specifically, the Northern District of Illinois, where plaintiffs state plaintiff Arthur Wah resides. See 28 U.S.C. § 1391(e)(3) (providing venue over claim against federal agency is proper in district plaintiff resides, if no real property is involved in claim).
CONCLUSION
For the reasons stated above, the above-entitled action is hereby TRANSFERRED to the Northern District of Illinois.
The Clerk of the Court shall close the file.
IT IS SO ORDERED.