Opinion
Civil No. 04-603 (ESH).
July 29, 2004
MEMORANDUM OPINION
Plaintiff filed this pro se complaint on April 14, 2004. Although the exact contours of plaintiff's allegations are unclear, they arise and relate to a legal action in the United States District Court for the Western District of Washington. See United States v. Stephenson, 313 F. Supp. 2d 1054 (W.D. Wash. 2004) ("Washington action"). There, the government sought to prevent plaintiff from promoting abusive tax schemes. Plaintiff alleges, inter alia, that the Washington action, initiated by defendants Kari Larson (a DOJ tax lawyer) and John McKay (an Assistant United States Attorney from the Western District of Washington), was a "sham," that United States District Judge Ronald B. Leighton issued an unlawful order for preliminary injunction, and that the United States District Court for the Western District of Washington lacked jurisdiction over the Washington action. ( See Compl. at 3-4.) On July 6, 2004, defendant Leighton moved to dismiss on the grounds that he has judicial immunity from this suit and that venue is improper in this Court. Plaintiff opposes this motion, arguing inter alia, that Judge Leighton is not properly represented by the DOJ, Tax Division and judicial immunity does not apply because the District Court for the Western District of Washington is not a court with any vested federal judicial authority.
Plaintiff has been barred from bringing this or any other non-habeas action in the Western District of Washington without prior leave of that court because of "litigation misconduct," which included "frivolous filings motivated by an improper purpose of harassment." Stephenson v. Larson, No. C02-5151L, slip op. at 2 (W.D. Wash. June 20, 2002).
Because the Court finds venue lacking, it need not reach the merits of defendant's persuasive judicial immunity arguments. See Magee v. Frank, No. 88-889, 1988 WL 117539, at *1 (D.D.C. Oct. 24, 1988) (declining to rule on the merits of defendant's motion to dismiss where venue was lacking).
28 U.S.C. § 1391(b) provides that
[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). Defendants in this case do not all reside in the same state — they reside in the state of Washington and Washington, D.C. And plaintiff himself states that "[t]his action charges the Defendants with engaging in unlawful, deceitful and fraudulent activity in Washington state. . . ." (Compl. at 3.) Because all defendants do not reside in the same state and a substantial part of the events giving rise to plaintiffs' claims occurred in the state of Washington, venue in the District of Columbia is improper. See Cameron v. Thornburgh, 983 F.2d 253, 257 (D.C. Cir. 1993) (Indiana prisoner's "complaint did not allege a single rule or policy emanating from Washington that had affected his case"). Accordingly, the Court must dismiss this case without prejudice. 28 U.S.C. § 1406(a) ("[t]he 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.") (emphasis added); see also Magee, 1988 WL 117539, at *1 (dismissing action without prejudice for lack of venue).
Jurisdiction in this case cannot be based on diversity as plaintiff is a citizen of the same state as defendants McKay and Leighton. 28 U.S.C. § 1332(a)(1). This defect is not overcome by plaintiff's allegation that the case meets the diversity statute's amount in controversy requirement. See 28 U.S.C. § 1332(a)(1).
Moreover, the conclusory statement offered by plaintiff as a basis for venue here — i.e., that "the alleged acts of the Defendants are alleged to have originated from within the District of Columbia, and thus occurred within the venue of the district" — simply does not satisfy the requirements of 28 U.S.C. § 1391(b), nor does his allegation that this Court is the only one vested with appropriate federal judicial authority to provide him with relief. (Compl. at 9-10).
The Court has discretion to determine whether a transfer would serve the interest of justice. Buchanan v. Manley, 145 F.3d 386, 389 n. 6 (D.C. Cir. 1998). Here, transfer to the United States District Court for the Western District of Washington would likely be a futile exercise as plaintiff has been barred from filing his claims there without leave of that court as a result of his own "litigation misconduct." Stephenson v. Lehman, C02-5151L, at 2. Thus, the interest of justice would not be served by transfer. McFarlane v. Esquire Magazine, 74 F.3d 1296, 1301 (D.C. Cir. 1996).
For the foregoing reasons, the Court will dismiss this case without prejudice. A separate Order accompanies this Memorandum Opinion.