Townsend v. Public Storage, Inc.

Filing 4

ORDER & REPORT-RECOMMENDATION: It is ordered that plaintiff's # 2 MOTION for Leave to Proceed in forma pauperis filed by Nadine Townsend is GRANTED FOR PURPOSES OF FILING ONLY, the # 3 MOTION to Appoint Counsel is DENIED. It is Recommended that the # 1 Complaint filed by Nadine Townsend be DISMISSED WITH PREJUDICE pursuant to 28 USC section 1915(e)(2)(B)(i-ii). (Objections to R&R due by 5/19/2014, Case Review Deadline 5/21/2014), Motion # 2 and # 3 are terminated. Signed by Magis trate Judge Therese Wiley Dancks on 4/30/2014. Signed by Magistrate Judge Therese Wiley Dancks on 4/30/2014. (Attachments: # 1 Unpublished Decision - Brown vs. State Farm, # 2 Unpublished Decision - Johnson vs. DHS-ICE, # 3 Unpublished Decision - Rose vs. Myers, # 4 Unpublished Decision - Townsend vs. L.P. Auto Transport) {Copy of the Order and Report-Recommendation sent to the pro se plaintiff along with copies of the four unreported cases cited therein, by regular mail} (jmb)

Page 1
Not Reported in F.Supp.2d, 2013 WL 6073627 (D.Conn.)
(Cite as: 2013 WL 6073627 (D.Conn.))

Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Travis ROSE, Plaintiff,
v.
Most Reverend John J. MYERS, et al., Defendants.
No. 3:13cv419 (MPS).
Nov. 18, 2013.

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, 99 S.Ct. 2710, 61 L.Ed.2d 464 (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.

Travis Rose, Windsor, CT, pro se.
Christopher L. Brigham, Updike, Kelly & Spellacy,
P.C., New Haven, CT, for Defendants.
ORDER ON MOTION TO DISMISS
MICHAEL P. SHEA, District Judge.
*1 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

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

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2
Not Reported in F.Supp.2d, 2013 WL 6073627 (D.Conn.)
(Cite as: 2013 WL 6073627 (D.Conn.))
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.FN1 (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.
FN1. 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.)
*2 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, 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.FN2
FN2. 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.
For the foregoing reasons, Defendants' Motion to
Dismiss is GRANTED in part and DENIED part. In
addition, Plaintiff's Motion to Amend the Complaint
[doc. # 19] and Plaintiff's Motion to Amend Document
[doc. # 24] are DENIED as futile.FN3 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.
FN3. Although the Court “should freely give
leave [to amend a complaint] when justice so

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3
Not Reported in F.Supp.2d, 2013 WL 6073627 (D.Conn.)
(Cite as: 2013 WL 6073627 (D.Conn.))
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,
2013 WL 5532133 (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,
2013 WL 4823153 (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.
IT IS SO ORDERED.
D.Conn.,2013.
Rose v. Myers
Not Reported in F.Supp.2d, 2013 WL 6073627
(D.Conn.)
END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.