Gage v. Somerset County

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THOMAS I. GAGE, pro se,
Plaintiff,
v. Civil Action No. 18-272 (CKK)
SOMERSET COUNTY, et al.,
Defendants.
MEMORANDUM OPINION
(August 21, 2018)
Defendant Jay B. Bohn, proceeding pro se, moves for dismissal of himself from this action
for lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can
be granted. The Court need proceed no further than the venue issue. Upon consideration of the
briefing, 1 the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant
Bohn’s [5] Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b) (2), (3) and (6) (“Motion
to Dismiss”), and, in an exercise of its discretion, shall DISMISS all claims against Defendant
Bohn due to improper venue.
I. BACKGROUND
The Court shall recite only those few allegations in the [1] Complaint that are necessary to
the resolution of Defendant Bohn’s Motion to Dismiss. Plaintiff Thomas I. Gage, who is also
proceeding pro se, has filed this suit against a number of public entities and current or former
1
The Court’s consideration has focused on the following documents:
• Def. Jay B. Bohn’s Mot. to Dismiss Compl. Pursuant to Fed. R. Civ. P. 12(b) (2), (3) and
(6), ECF No. 5 (“Def.’s Mot.”);
• Mem. of P&A in Supp. of Pl.’s Opp’n to Def. Jay Bohn’s Mot. to Dismiss Compl. Pursuant
to Fed. R. Civ. P. 12(b) (2) and (3) and (6), ECF No. 7 (“Pl.’s Opp’n”); and
• Reply Mem. of P&A in Further Supp. of Def. Jay B. Bohn’s Mot. to Dismiss Compl.
Pursuant to Fed. R. Civ. P. 12(b) (2), and (3) and (6), ECF No. 9 (“Def.’s Reply”).
1
officials in New Jersey, as well as Defendant Bohn, a private attorney. 2 Plaintiff’s thirty-eight
count Complaint pursues a variety of causes of action that allegedly “arose from an attempt of
Plaintiff to expose fraudulent documents that have been used on August 8, 2011, to steal Plaintiff’s
private property at: 51 Hillcrest Blvd, Warren, NJ.” Compl., ECF No. 1, ¶ 3. The Complaint is
not a model of clarity, but as best the Court can discern, Plaintiff objects to an alleged series of
actions taken by state and local officials and Defendant Bohn in response to his opposition to a
real estate development called Sleepy Hollow in Warren, NJ. See generally id. ¶¶ 4, 5, 29, 32.
Defendant Bohn has moved to dismiss this case pursuant to Federal Rules of Civil Procedure
12(b)(2), (3), and (6). Upon conclusion of briefing, this motion is ripe for resolution.
II. LEGAL STANDARD
The federal statute governing venue provides that “[a] civil action may be brought in (1) a
judicial district in which any defendant resides, if all defendants are residents of the State in which
the district is located [or] (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.” 28 U.S.C. § 1391(b)(1), (2). Only “if there is no district in which an action may
otherwise be brought as provided in” Section 1391 may the plaintiff pursue his claims in “any
judicial district in which any defendant is subject to the court’s personal jurisdiction with respect
to such action.” Id. § 1391(b)(3).
When presented with a motion to dismiss for improper venue under Rule 12(b)(3), the
Court “accepts the plaintiff’s well-pled factual allegations regarding venue as true, draws all
2
In addition to naming Defendant Bohn, Plaintiff’s Complaint names and alleges the identities of
other defendants as follows: Somerset County, NJ; Christopher S. Porrino, former New Jersey
State Attorney General; City of Watchung, NJ; Geoffrey D. Soriano, a former prosecutor in the
Somerset County Prosecutor Office; Michael C. Schutta, a detective in the Somerset County
Prosecutor Office; and the Somerset County Jail. Compl., ECF No. 1, ¶¶ 24-30.
2
reasonable inferences from those allegations in the plaintiff’s favor and resolves any factual
conflicts in the plaintiff’s favor.” James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 11 (D.D.C.
2009). “The court, however, need not accept the plaintiff’s legal conclusions as true.” Id.
“Because it is the plaintiff’s obligation to institute the action in a permissible forum, the plaintiff
usually bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d
52, 56 (D.D.C. 2003). “If the [p]laintiff is proceeding pro se, however, the factual allegations
contained in his complaint will be held to less stringent standards than formal pleadings.” Akers
v. Gutierrez, Civ. Action No. 07cv266 (RJL), 2007 WL 1541500, at *1 (D.D.C. May 23, 2007). 3
“Unless there are pertinent factual disputes to resolve, a challenge to venue presents a pure question
of law.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
“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). Before dismissing a case for
want of proper venue, a district court should consider whether the “interest of justice” standard
warrants transfer. See Dugdale v. Ditech Fin., LLC, No. 17-7137, 2018 WL 1391724 (D.C. Cir.
Feb. 21, 2018) (citing 28 U.S.C. § 1406(a); Hayes v. Livermont, 279 F.2d 818, 818 (D.C. Cir.
1960) (per curiam)).
If by reason of the uncertainties of proper venue a mistake is made, Congress, by
the enactment of [Section] 1406(a), recognized that “the interest of justice” may
require that the complaint not be dismissed but rather that it be transferred in order
3
Some courts place the burden on defendant, or at least use language suggesting as much. See,
e.g., Khalil v. L–3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009) (“To prevail
on a motion to dismiss for improper venue, the defendant must present facts that will defeat the
plaintiff’s assertion of venue.” (quoting James, 639 F. Supp. 2d at 11) (internal quotation marks
omitted)); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1352 (3d ed. 2004) (noting the split, and maintaining that those courts placing burden on
plaintiff appear to adopt “correct” view). Whether this Court formally places the burden with
Plaintiff or Defendant Bohn, however, the Court finds that the outcome would be the same.
3
that the plaintiff not be penalized by what the late Judge Parker aptly characterized
as “time-consuming and justice-defeating technicalities.”
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962) (quoting, respectively, 28 U.S.C. § 1406(a);
Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 517 (4th Cir. 1955)). “The decision whether
a transfer or a dismissal is in the interest of justice, however, rests within the sound discretion of
the district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).
III. DISCUSSION
In his Complaint, Plaintiff pleads nothing to support laying venue against Defendant Bohn
in the District of Columbia. Between the Complaint and the briefing, it is clear that neither Plaintiff
nor Defendant Bohn resides in the District of Columbia. Both parties are residents of New Jersey.
Compl., ECF No. 1, ¶ 23; Def.’s Mot. at 5; see 28 U.S.C. § 1391(b)(1). Nor is there any allegation
that “a substantial part of the events or omissions giving rise to the claim[s] occurred, or a
substantial part of property that is the subject of the action is situated,” in the District of Columbia.
28 U.S.C. § 1391(b)(2). It appears that all of the activities alleged in the Complaint occurred in
New Jersey.
Despite Plaintiff’s inability to avail himself of the first two options under Section 1391(b),
Plaintiff cannot resort to the residual opportunity to lay venue in simply any federal district court
where personal jurisdiction may lie, for there is a federal district court in which venue would be
proper. See id. § 1391(b)(3). Because both Plaintiff and Defendant Bohn are residents of New
Jersey, venue is proper in the U.S. District Court for the District of New Jersey. If that were not
enough, the District of New Jersey is also the proper venue because a substantial part, if not all, of
the alleged events or omissions and the property at issue are located there. Accordingly, the Court
finds that venue is improper in the U.S. District Court for the District of Columbia.
4
In an exercise of its discretion, the Court also finds that it would not be in the interest of
justice to transfer this case to the District of New Jersey. Defendant Bohn’s motion suggests that
Plaintiff is shopping for a forum amenable to claims similar to, and perhaps the same as, those that
have been dismissed by courts in New Jersey. See Def.’s Mot. at 6-12, 17-18 (listing 11 of the
prior cases in New Jersey federal and state courts, as well as Delaware federal court that transferred
case filed there to New Jersey federal court). Plaintiff fails to rebut that inference.
A selection of those cases is sufficient to establish that Plaintiff has had his “day in court”
against Defendant Bohn relating to the Sleepy Hollow development. Of the eleven litigations by
Plaintiff that Defendant Bohn lists in his motion, in the seventh, a court in the District of New
Jersey dismissed the action against Defendant Bohn and others, and further “enjoin[ed] Plaintiff
Thomas Gage, when proceeding pro se, from filing a complaint against any of the defendants
herein or any employee, agent, or attorney thereof, in the United States District Court, District of
Jersey, relating to the Sleepy Hollow development, without prior leave of this Court.” Gage v.
Kumpf, Civil Action No. 12-2620, 2012 WL 5630568, at *5 (D.N.J. Nov. 15, 2012) (doing so “in
the interest of promoting judicial efficiency and deterring further frivolous filings”). In the ninth
case, a New Jersey Superior Court issued a still-broader injunction prohibiting Plaintiff “from
filing or continuing any lawsuit against . . . Jay B. Bohn [and others] in any court, relating to the
Sleepy Hollow development, without prior leave of this court.” Order, Gage v. Warren Twp.
Planning Bd., Dkt No. SOM-L-1447-14 (N.J. Super. Ct. Law Div. Jan. 16, 2015) (emphasis
added); Def.’s Mot. Ex. 3. This Court finds that the present case relates to the Sleepy Hollow
development, and that Plaintiff is improperly suing Defendant Bohn again without any hint of
obtaining approval from the New Jersey Superior Court that issued a broad injunction applicable
to Plaintiff’s litigation in any court.
5
As Defendant Bohn observes, Plaintiff most recently sued in the District of New Jersey
substantially the same set of defendants for what appears to be the same Sleepy Hollow-related
conduct as he presently pursues in this suit. The court found that it lacked subject-matter
jurisdiction over his claims. Gage v. Somerset Cnty., Civil Action No. 3:16-cv-3119-BRM-LHG,
2017 WL 436258 (D.N.J. Jan. 31, 2017). 4 Plaintiff chose to appeal to the U.S. Court of Appeals
for the Third Circuit, rather than to take the opportunity, given to him by the district court, to
amend his complaint within thirty days. Order, Gage v. Somerset Cnty., Civil Action No. 3:16-
cv-03119-BRM-LHG, at 1 (D.N.J. Dec. 19, 2017), ECF No. 52. Upon affirmance of the district
court’s decision, the district court found that Plaintiff no longer had the opportunity to amend his
complaint, and accordingly, the court dismissed his case with prejudice. Id. at 2.
Plaintiff gives no colorable response to Defendant Bohn’s recitation of the string of prior
unsuccessful litigations, nor any valid reason to pursue litigation here. Rather, he asserts that he
“has lost his confidence to find justice in the District of New Jersey.” Pl.’s Opp’n at 4. Suspecting
an entire district of the federal court system of being unable to dispense justice is an unsustainable
basis for permitting Plaintiff to maintain his suit against Defendant Bohn in this Court. The Court
finds that it is unnecessary to entertain the remainder of Plaintiff’s arguments, none of which
address the standard for laying venue in this Court. This is not a case where Plaintiff mistakenly
suspected that venue was proper here, in which case justice could warrant transfer. See Goldlawr,
Inc., 369 U.S. at 467. Dismissal of this action against Defendant Bohn, rather than transfer to the
proper venue, is appropriate where Plaintiff offers no valid grounds for pursuing his suit here in
the first place. See Stanifer v. Brannan, 564 F.3d 455, 458 (6th Cir. 2009) (affirming dismissal,
4
With respect to some of Plaintiff’s claims, the court found not only that it lacked subject-matter
jurisdiction but also that Plaintiff had failed to state a claim. Gage v. Somerset Cnty., Civil Action
No. 3:16-cv-3119-BRM-LHG, 2017 WL 436258, at *5.
6
rather than transfer, where plaintiff had “failed to offer even one reason, plausible or not, for filing
in what was obviously the wrong venue—and no reason at all for failing to file in the proper
district”).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant Jay B. Bohn’s [5] Motion to
Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b) (2), (3) and (6), and, in an exercise of its
discretion, shall DISMISS all claims against Defendant Bohn due to improper venue.
The Court has ruled on the venue issue only as to the sole movant, Defendant Bohn. As
for the remaining Defendants, the Court shall provide Plaintiff with an opportunity to show cause
as to whether and why venue is proper in the U.S. District Court for the District of Columbia.
A copy of this Memorandum Opinion shall be mailed to Plaintiff at his address of record.
An appropriate Order accompanies this Memorandum Opinion.
Dated: August 21, 2018
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
7