Opinion
Civil Action 00-0995-M
April 4, 2001
MEMORANDUM OPINION AND ORDER
This action comes before the Court on the Motions to Dismiss filed by Defendants (Docs. 2-3, 13, 25-26). Jurisdiction has been invoked in this Court under 28 U.S.C. § 1331. The parties have consented in writing to have all matters and proceedings in this action conducted by the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636 (c) ( see Doc. 20). After consideration, the Motions to Dismiss are GRANTED.
The facts, very briefly, are as follows. On August 4, 1995, Plaintiff Canterbury Development Corporation applied to Defendant Alabama Home Builders Licensure Board (hereinafter Board) for a residential home builders license for Plaintiff Beverly Barber (Doc. 18). Later that same month, Barber appeared before the Board to request that she be grand fathered in under provisions which did not require a written examination; the request was denied. In May 2000, Barber again appeared before the Board with the same request, which was again denied. On October 2, 2000, Barber filed a complaint against the Board and Board Members, in their individual capacities, in the Circuit Court of Dallas County, alleging the following claims:
Because the facts are more clearly set out in the Report of Parties' Planning Meeting (Doc. 18) than in the other pleadings of record, the Court will draw the summary from this Report.
civil discovery; breach of covenant of good faith and fair dealing; tortious interference with contractual or business relationship; breach of contract and or warranty; abuse of process; breach of covenant or agreement; bad faith; injurious falsehood; fraud and/or misrepresentation; failure and/or breach of duty to disclose; promissory estoppel; detrimental reliance; negligence; wantonness; trespass of chattels; negligent and/or wanton infliction of emotional distress; discrimination and violation of constitutional rights of equal protection.
(Doc. 18, p. 2, ¶ 4; see Doc. 1 Complaint). Two days later, Barber and Canterbury filed an amended complaint which was captioned as a Class Action Complaint; the amended complaint also individually named Board Members Dan Nolan, Jack Reid, Jayne Ward, John Parker, and Jim Mitchell as Defendants (Doc. 1, Amended Complaint). The Defendants removed the action to this Court, alleging jurisdiction under 28 U.S.C. § 1331 (Doc. 1).
Defendants subsequently filed Motions to Dismiss (Docs. 2-3, 13, 25-26). Plaintiffs have responded to those Motions (Docs. 5, 10, 23).
It is first noted that this Court has jurisdiction in this action, pursuant to 28 U.S.C. § 1331, as Plaintiffs have alleged a claim under 42 U.S.C. § 1983 ( see Doc. 1, Count 17 of both Complaint and Amended Complaint). The § 1983 action could have been brought originally in this Court, so removal on that basis under 28 U.S.C. § 1441 (a) was proper.
Defendants raise several arguments as to why this action should be dismissed. The Court, however, is going to focus on only one, that of whether this Court has venue over this action.
Plaintiffs filed this action in the Circuit Court of Dallas County (Doc. 1 Complaint). Defendants removed the action to this Court because there is a federal claim and because this Court's jurisdiction includes actions which were originally brought in Dallas County which could have been brought here. 28 U.S.C. § 81 (c)(1); 1441(a). Defendants' only choice, in removing the action, was to bring it to this Court. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953) (the venue of removed actions is governed by the removal statute — not by the ordinary federal venue statute).
However, now that the action is here, Defendants seek to have it dismissed, claiming that it was filed in the wrong state court. The Second Circuit Court of Appeals has held that such a challenge is appropriate and that if the underlying action was filed in the wrong state forum, the federal district court can dismiss the action on the basis of improper venue. PT United Can Co. Ltd. v. Crown Cork Seal Co., 138 F.3d 65, 72-73 (2nd Cir. 1998).
The Court has found no relevant Eleventh Circuit case law.
It appears that the Board is a State agency. Ala. Code § 34-14A-3 (1997). Venue for state agencies lies in the county of the agency's official residence. Ex Parte Dowdell, 677 So.2d 1158, 1159 (Ala. 1996) ( citing Tri-State Corp. v. State, 128 So.2d 505, 509 (Ala. 1961)). However, venue is also proper in the county of residence of any of the individually named Defendants. Ex Parte Dowdell, 677 So.2d at 1159.
The Board has asserted that its residence is, and that all events connected with this lawsuit occurred, in Montgomery County (Doc. 26, p. 3). Defendants also assert that none of the individually-named Defendants reside in Dallas County. Id. An attachment to one of Plaintiffs' responses confirms that none of the Board Members live in Dallas County ( see Doc. 23 Exhibit).
Plaintiffs have not refuted these assertions, though given the opportunity to do so ( see Docs. 5, 10, 23). In fact, the only real discussion of the subject by Plaintiffs is the assertion that the action was properly brought in Dallas County, pursuant to the Alabama Administrative Code, as one of the Plaintiffs resides in Dallas County (Doc. 23); the Court notes, however, that the person, William Murry, to whom Plaintiffs refer is not a party to this action (Doc. 29, p. 2).
The Court finds that, in this action, this Court derives its jurisdiction from Alabama state law. As it is apparent that Plaintiffs have filed this action in the wrong State court, venue is improper in this Court. Therefore, Defendants' Motions to Dismiss are GRANTED (Docs. 2-3, 13, 25-26) and this action is DISMISSED without prejudice.