Gandolfo v. City of Medford and its Police Department et al

Filing 3

TRANSFER ORDER: The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note service on the docket. The Court also directs the Clerk of Court to transfer this action to the United States District Court for the District of Massachusetts. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. A summons shall not issue from this Court. This order closes this action. The Court certifies, pursuant to 28 U.S.C 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Colleen McMahon on 2/16/21) (rdz) Transmission to Docket Assistant Clerk for processing. Transmission to Office of the Clerk of Court for processing.

Case 1:21-cv-01288-CM Document 3 Filed 02/16/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MICHAEL S. GANDOLFO,
Plaintiff,
-againstCITY OF MEDFORD AND ITS POLICE
DEPARTMENT; OFFICERS JOHN DOE
AND RICHARD ROE; CLERKMAGISTRATE SOMERVILLE DISTRICT
COURT; DETECTIVE PATRICIA
SULLIVAN; LENA GASPARRO; MARK
RUBY, ESQ.; LIBBY FULGIONE, ESQ.,

1:21-CV-1288 (CM)
TRANSFER ORDER

Defendants.
COLLEEN McMAHON, Chief United States District Judge:
Plaintiff Michael S. Gandolfo, who appears pro se, brings this action under 42 U.S.C.
§ 1983, the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and state law. For the
following reasons, the Court transfers this action to the United States District Court for the
District of Massachusetts.
Claims brought under 42 U.S.C. § 1983, as well as claims brought under state law, must
be brought in a federal district court 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). Under 28 U.S.C. § 1391(c), a “natural person” resides in the judicial district
where the person is domiciled, and any other “entity with the capacity to sue and be sued,” if a
defendant, resides in any judicial district where it is subject to personal jurisdiction with respect
to the civil action in question. See § 1391(c)(1), (2). With respect to civil claims brought under

Case 1:21-cv-01288-CM Document 3 Filed 02/16/21 Page 2 of 3

RICO, they must be brought in the judicial district where the defendant “resides, is found, has an
agent, or transacts his affairs.” 18 U.S.C. § 1965(a).
Plaintiff sues: (1) the City of Medford, Massachusetts, (2) the City of Medford
(Massachusetts) Police Department (“MPD”), (3) two unidentified MPD police officers (John
Doe and Richard Roe), (4) MPD Detective Patricia Sullivan, (5) the Clerk-Magistrate of the
Somerville District Court, in Somerville, Massachusetts, (6) Lena Gasparro, Plaintiff’s next-door
neighbor, 1 (7) Mark Ruby, Esq., Plaintiff’s attorney, and (8) Libby Fulgione, Esq., Plaintiff’s
other attorney.
All of Plaintiff’s claims arise from events that occurred in Massachusetts, including
Plaintiff’s arrest, prosecution, and conviction. And all of the defendants appear to either reside,
are found, have an agent, or transact affairs in Massachusetts. Because Plaintiff does not allege
that any defendant resides in this judicial district or that a substantial part of the events or
omissions giving rise to his claims arose in this judicial district, this Court is not a proper venue
for Plaintiff’s § 1983 and state-law claims under § 1391(b). 2 And because Plaintiff does not
allege the any defendant resides, is found, has an agent, or transacts his or her affairs within this
judicial district, this Court is not a proper venue for Plaintiff’s RICO claims under § 1965(a).
Because the events that are the basis for Plaintiff’s claims occurred in Massachusetts, and
because the defendants either reside, are found, have an agent, or transact their affairs in
Massachusetts, the proper venue for this action is the United States District Court for the District

1

Plaintiff’s address of record is an address in North Conway, New Hampshire. But in his
complaint, Plaintiff asserts that he is a resident of Medford, Massachusetts. (ECF 2, at 2.)
2

This judicial district – the Southern District of New York – is comprised of the
following New York State counties: New York (Borough of Manhattan), Bronx, (Borough of the
Bronx), Westchester, Dutchess, Rockland, Orange, Putnam, and Sullivan. 28 U.S.C. § 112(b).
2

Case 1:21-cv-01288-CM Document 3 Filed 02/16/21 Page 3 of 3

of Massachusetts. See 28 U.S.C. §§ 101, 1391(b); 18 U.S.C. § 1965(a). The Court therefore
transfers this action to that court. See 28 U.S.C. § 1406(a).
CONCLUSION
The Court directs the Clerk of Court to mail a copy of this order to Plaintiff and note
service on the docket. The Court also directs the Clerk of Court to transfer this action to the
United States District Court for the District of Massachusetts. Whether Plaintiff should be
permitted to proceed further without prepayment of fees is a determination to be made by the
transferee court. A summons shall not issue from this Court. This order closes this action.
The Court certifies, pursuant to 28 U.S.C § 1915(a)(3), that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

February 16, 2021
New York, New York
COLLEEN McMAHON
Chief United States District Judge

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