Rose v. Myers et al
ORDER. For the reasons stated herein, Defendants' 15 Motion to Dismiss is GRANTED in part and DENIED in part; Plaintiff's 19 Motion to Amend Complaint and 24 Motion to Amend Document are DENIED as futile; Plaintiff's 23 Motion for Extension of Time and 26 Motion for Appointment of Counsel are DENIED as moot. The Clerk is directed to transfer this case to the District of New Jersey. Signed by Judge Michael P. Shea on 11/18/2013. (Best, Z)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
No. 3:13cv419 (MPS)
MOST REVEREND JOHN J. MYERS, et al.,
ORDER ON MOTION TO DISMISS
Plaintiff, Travis Rose, filed suit against various administrators of Seton Hall University
and the sixteen members of Seton Hall’s Board of Trustees (collectively “Defendants”).
Plaintiff’s claims arise out of his involvement in and dismissal from a joint physician’s assistant
program between Seton Hall University and the University of Medicine and Dentistry of New
Jersey. Defendants have moved to dismiss the Amended Complaint on two grounds: first, that
this Court lacks personal jurisdiction over Defendants, and second, that the District of
Connecticut is an improper venue. [See doc. # 15]. Because I find that this is an improper
venue, Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part, and the Clerk
is directed to transfer this case to the United States District Court for the District of New Jersey,
the proper venue under 28 U.S.C. § 1391(b).
As a preliminary note, although Defendants have moved to dismiss the Amended
Complaint on both personal jurisdiction and venue grounds, the Court is permitted to consider
venue before personal jurisdiction, Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979),
and has the authority to transfer venue even if it lacks personal jurisdiction over the defendant,
Open Solutions Imaging Sys., Inc. v. Horn, 3:03-cv-2077, 2004 WL 1683158, *7 n.12 (D. Conn.
July 27, 2004) (citing Fort Knox Music, Inc. v. Baptiste, 257 F.3d 108, 111-12 (2d Cir. 2001)).
The question of personal jurisdiction in this case is considerably more difficult than the question
of venue. Accordingly, the Court will consider Defendants’ venue argument first.
Defendants argue that this district is an improper venue under 28 U.S.C. § 1391(b). That
section provides that a federal civil action can be commenced in: (1) a judicial district in which
any defendant resides, if all defendants are residents of the State in which the district is located;
(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)
if there is no district in which an action may otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect
to such action. 28 U.S.C. § 1391(b). Plaintiff bears the burden of demonstrating that venue is
proper by showing that at least one of these three conditions is met. Open Solutions, 2004 WL
1683158 at *4 (explaining that, although there is no Second Circuit precedent on this issue,
imposing the burden on the plaintiff is the “better view” and is consistent with Second Circuit
precedent with respect to showing proper jurisdiction under Rule 12(b)(2)).
Here, even construing Plaintiff’s pro se complaint liberally, Gyadu v. Hartford Ins. Co.,
283 F. Supp. 2d 740, 744 (D. Conn. 2003), I find that Plaintiff has failed to satisfy the venue
requirements in § 1391(b). None of the Defendants resides in Connecticut, thus making §
1391(b)(1) inapplicable. (See Am. Compl. [doc. # 6] at 1 (alleging that Defendants are citizens
of Newark, New Jersey).) Moreover, with respect to § 1391(b)(2), Plaintiff does not claim that
any of the events giving rise to his claim occurred in Connecticut. The claims arise out of his
participation in program at Seton Hall University and the University of Medicine and Dentistry
of New Jersey, both of which are located in New Jersey. Specifically, the Amended Complaint
alleges that Defendants committed fraud by wrongfully calculating his grade point average,
altering his transcripts, and wrongfully terminating Plaintiff from the Physician Assistant
Program.1 (See id. at 2.) Indeed, the only allegation related to this venue in the Amended
Complaint—or in any of Plaintiff’s other submissions—is Plaintiff’s statement that he is a
citizen of Connecticut. (Id. at 1.) Like § 1391(b)(1), § 1391(b)(2) is therefore inapplicable.
Finally, with respect to § 1391(b)(3), Plaintiff does not contend that there is no district in which
this action may otherwise be brought, nor could he, as the allegations make clear that the District
of New Jersey would be the proper venue here. Because Plaintiff has failed to show that this
case meets any of the three conditions in 28 U.S.C. § 1391(b), I find that venue is improper.
Defendants argue that, because this case was filed in the wrong venue, the Court should
dismiss the Amended Complaint altogether. Section 1406(a) states that “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). “Whether dismissal or transfer is appropriate lies within
the sound discretion of the district court.” Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d
Cir. 1993). Given Plaintiff’s pro se status and apparent lack of familiarity with venue rules, and
because Defendants have not yet sought to dismiss Plaintiff’s claims on any substantive grounds,
In a later section, entitled “Waiver to Statute of Limitations,” the Amended Complaint
confusingly refers to “prison officials placing him in confinement as a disciplinary measure after
he had allegedly struck co-worker on the head-ear region with his fist following a verbal
altercation.” (Am. Compl. [doc. # 6] at 5.) This series of events is later connected to an
individual “acting on behalf of Seton Hall University,” and thus appears to be related to the other
events that occurred at Seton Hall. In addition, this unclear set of allegations makes no
connection to Connecticut, and in fact refers to a complaint filed in “Fort Dix, New Jersey
magistrate court.” (Id.)
I find that the interests of justice weigh in favor of transfer to the United States District Court of
New Jersey rather than outright dismissal.2
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED in part and
In addition, Plaintiff’s Motion to Amend the Complaint [doc. # 19] and
Plaintiff’s Motion to Amend Document [doc. # 24] are DENIED as futile.3 Plaintiff’s Motion
for Extension of Time [doc. # 23] and Motion for Appointment of Counsel [doc. # 26] are
DENIED as moot. The Clerk is directed to transfer this case to the District of New Jersey.
IT IS SO ORDERED.
Michael P. Shea, U.S.D.J.
November 18, 2013
Having exercised my discretion to transfer the case on venue grounds, and because
Defendants concede that personal jurisdiction lies in the District of New Jersey, I need not reach
the question whether this Court has personal jurisdiction over the Defendants.
Although the Court “should freely give leave [to amend a complaint] when justice so
requires” under Rule 15, Fed. R. Civ. P. 15(a)(2), “leave will be denied if the amendment would
be futile.” Vale v. City of New Haven Police Dep’t, No. 3:11-cv-00632, 2013 U.S. Dist. LEXIS
143567, *2 (D. Conn. Oct. 4, 2013). “An amendment is futile if the proposed new claim would
not survive a motion to dismiss.” Riddick v. Chevalier, No. 3:11-cv-1555, 2013 U.S. Dist.
LEXIS 128008, *11 (D. Conn. Sept. 9, 2013). Plaintiff’s proposed amended complaint [doc. #
19-1] does not allege any facts that cure the venue problem, and thus would not survive a motion
to dismiss. Plaintiff’s October 1, 2013 motion to amend is somewhat ambiguous in that it does
not state specifically which document Plaintiff seeks to amend. [See doc. # 24]. It does,
however, request leave to amend a “document file [sic] on 2013 SEP 16.” [See id.] Because
there was no complaint filed on that date, I find that the motion does not seek leave to amend the
operative complaint. In any event, Plaintiff’s opposition to the Motion to Dismiss, which was
filed the same day [see doc. # 25], does not even attempt to rebut Defendants’ argument that the
events giving rise to Plaintiff’s claim occurred in New Jersey. Accordingly, I find that any
amendment would be futile.
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