Gaspar v. McCament, et al

Filing 23

ORDER granting in part and denying in part 20 Motion to Dismiss. Signed by Chief US District Judge Terrence W. Boyle on 11/8/2018. This action is hereby TRANSFERRED in its entirety to the United States District Court for the Southern District of California. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:17-CV-459-BO

PASCUAL LUCIANO TOMAS GASP AR, )
)
Plaintiff,
)
)
)
v.
)
)
JAMES MCCAMENT, Acting Director,
U.S. Citizenship and Immigration Services, )
)
et al.,
)
)
Defendants.

ORDER

This cause comes before the Court on defendants' motion to dismiss for improper venue
or, in the alternative, to transfer venue. [DE 20].

Plaintiff opposes dismissal, but does not

oppose a transfer of this matter to the Southern District of California. [DE 22]. For the reasons
that follow, this action is TRANSFERRED to the United States District Court for the Southern
District of California.
BACKGROUND
Plaintiff, a resident of Fallbrook, California, and a native and citizen of Guatemala, filed
.

'

this action under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., seeking
declaratory and injunctive relief relating to defendants' denial of plaintiffs application for
Employment Authorization. Defendants have moved to dismiss plaintiffs complaint pursuant to
Fed. R. Civ. P. 12(b)(3), or, in the alternative, to transfer venue pursuant to 28 U.S.C. §§

1391(e)(l) and 1406(a), arguing that no event giving rise to the actions complained of occurred
in this district, no defendant resides in this district, and plaintiff does not reside in this district.
DISCUSSION
Where a defendant in a civil action is an officer or employee of the United States acting
in his or her official capacity or is an agency of the United States, venue is proper in the judicial
district in which a defendant resides, a substantial part of the events giving rise to the action
occurred, or the plaintiff resides ifthere is no real property involved. 28 U.S.C. § 1391(e)(l).
Plaintiffs complaint alleges that venue is proper in this district because defendant U.S.
Customs and Immigration Service has offices in every state, including but not limited to RaleighDurham. As defendants correctly note, however, the U.S.C.l.S. field office to which plaintiff
refers is in Durham, North Carolina, which is located in the Middle District of North Carolina.

See 28 U.S.C. § 113. Plaintiff has not alleged or demonstrated that any of the individual
defendants perform their duties in 'this district, as would be required to establish venue here, see

Republican Party of N Carolina v. Martin, 682 F. Supp. 834, 836 (M.D.N.C. 1988), nor has
plaintiff alleged or demonstrated that any events giving rise to this action took place in this
district or that he is a resident of this district. Venue is thus improper in the Eastern District of
North Carolina.
"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). The Court finds that in the
interests of justice transfer of this action is warranted. Accordingly, the Court transfers this case
to the Southern District of California, the district in which plaintiff resides. See 28 U.S.C. § 84.

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CONCLUSION
For the foregoing reasons, defendants' motion to dismiss or, in the alternative, to transfer
is GRANTED IN PART and DENIED IN PART. This action is hereby TRANSFERRED in its
entirety to the United States District Court for the Southern District of California.

SO ORDERED, this

_J_ day ofNovember, 2018.

~0~~¥

CHIEF UNITED STATES DISTRICT JUDGE

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