Aftab v. Gonzalez

• Decision Date: 17 February 2009
• Docket Number: No. 07-2080 (RWR).,07-2080 (RWR).
• Citation: 597 F.Supp.2d 76
• Parties: Kashif AFTAB, Plaintiff, v. Emilio T. GONZALEZ et al., Defendants.
• Court: U.S. District Court — District of Columbia

597 F.Supp.2d 76

Kashif AFTAB, Plaintiff, v. Emilio T. GONZALEZ et al., Defendants.

Civil Action No. 07-2080 (RWR).

United States District Court, District of Columbia.

February 17, 2009.

COPYRIGHT MATERIAL OMITTED

Thomas K. Ragland, Maggio & Kattar, P.C., Washington, DC, for Plaintiff.

Brandon Leigh Lowy, U.S. Attorney's Office, Robin Michelle Meriweather, Assistant United States Attorney, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, District Judge.

Kashif Aftab brings claims against the Director of United States Citizenship and Immigration Services ("CIS"), the Secretary of the United States Department of Homeland Security ("DHS"), the Director of the Federal Bureau of Investigation ("FBI"), and the Director of CIS' Texas Service Center ("TSC"), alleging that they have unreasonably delayed processing his application for adjustment of his status. The defendants have moved to dismiss for lack of subject matter jurisdiction, or in the alternative, to transfer venue. Because the defendants show that a transfer of venue to the Northern District of Texas is in the interest of justice, the defendants' motion to transfer will be granted.

BACKGROUND

Aftab, a resident of Houston, Texas, was the subject of an approved "immigrant petition for alien worker (Form I-140) filed on his behalf by his longtime employer[.]" (Compl. ¶ 15.) After his immigrant petition was approved, Aftab filed an application for adjustment of status with CIS' Vermont Service Center in 2002. As directed by the Vermont Service Center, Aftab twice provided fingerprints and additional evidence regarding his birth date and employment. (Id. ¶¶ 15, 16.) CIS also sent the FBI a request for a background check on Aftab. (Id. ¶ 12.) Aftab moved to Texas in 2005 and his application was transferred to the TSC in 2007. (Id. ¶¶ 17, 18.) The TSC later asked Aftab for additional evidence and fingerprints. (Id. ¶ 20.) Aftab has contacted the TSC on multiple occasions regarding the status of his application, but he has not received a final decision. (Id. ¶ 21.) At the time this action was filed, the TSC was reviewing "employment-based adjustment of status applications filed on or before August 25, 2006," which would include Aftab's application. (Id. ¶ 19.)

Aftab alleges that the defendants have failed to adjudicate his adjustment of status application and seeks to "[c]ompel the Defendants and those acting under them to take all appropriate action to perform their duty to adjudicate the Plaintiff's adjustment of status application without further delay[.]" (Id. at 15.) He alleges that CIS has "willfully and unreasonably failed to adjudicate the Plaintiff's application for adjustment of status for over five years, thereby depriving the Plaintiff of his rights under 8 U.S.C. § 1151(a)(2)." (Id. ¶ 32.)

Three of the defendants are located in the District of Columbia while the Director of CIS' TSC is located in the Northern District of Texas. The defendants have moved under Federal Rule of Civil Procedure 12(b)(1) to dismiss or to transfer the action to the Northern District of Texas under 28 U.S.C. § 1404(a). (Defs.' Mem. of Law in Supp. of Mot. to Dismiss or in the Alternative to Transfer ("Defs.' Mem.") at 1.)

DISCUSSION

I. ADDRESSING VENUE BEFORE JURISDICTION

Although the defendants have moved to dismiss for lack of subject matter jurisdiction, the motion to transfer venue under § 1404 may be addressed first. In Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007), the Supreme Court held that the question of forum non conveniens can be addressed before considering whether subject matter jurisdiction exists. Id. at 1188 (stating that "a district court has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection[,]" including subject matter jurisdiction or personal jurisdiction). "A district court therefore may dispose of an action by a forum non conveniens dismissal, bypassing questions of subject-matter and personal jurisdiction, when considerations of convenience, fairness, and judicial economy so warrant." Id. at 1192 (stating that a forum non conveniens dismissal "denies audience to a case on the merits" and "is a determination that the merits should be adjudicated elsewhere" (internal quotation marks and brackets omitted)). "Sinochem thus firmly establishes that certain non-merits, non-jurisdictional issues may be addressed preliminarily, because `[j]urisdiction is vital only if the court proposes to issue a judgment on the merits.'" Pub. Citizen v. U.S. Dist. Court for District of Columbia, 486 F.3d 1342, 1348 (D.C.Cir.2007) (quoting Sinochem, 127 S.Ct. at 1191-92).

While the defendants do not move for dismissal based on forum non conveniens as happened in Sinochem, they do seek a transfer of the case to the Northern District of Texas under § 1404(a). Sinochem's rationale has been extended to cases involving transfer of venue under § 1404(a). See Kazenercom TOO v. Turan Petroleum, Inc., 590 F.Supp.2d 153, 157 n. 5 (D.D.C.2008) (stating that Sinochem supports deciding the motion to transfer venue under § 1404(a) before addressing issues of personal or subject matter jurisdiction); Cheney v. IPD Analytics, LLC, 583 F.Supp.2d 108, 116-17 (D.D.C.2008) (concluding that following Sinochem, the court could address a motion to transfer venue under § 1404(a) before addressing issues of personal jurisdiction); Focus Enters., Inc. v. Zassi Med. Evolutions, Inc., Civil Action No. 06-2068(GK), 2007 WL 1577844, at *1 n. 1 (D.D.C. May 31, 2007) (stating that because the case should be transferred to another district, the question of personal jurisdiction need not be addressed). "[A] federal court has leeway `to choose among threshold grounds for denying audience to a case on the merits'" and there is no "`mandatory sequencing of jurisdictional issues.'" In re LimitNone, LLC, 551 F.3d 572, 576 (7th Cir.2008) (quoting Sinochem, 127 S.Ct. at 1191); see also Public Serv. Elec. & Gas Co. v. FERC, 485 F.3d 1164, 1171 (D.C.Cir.2007) (citing Sinochem to support the proposition that it "need not reach the question of standing because our decision rests on a different `threshold, non-merits' ground"). Adjudicative efficiency favors resolving the venue issue before addressing whether subject matter jurisdiction exists.

II. ASSESSING VENUE

A case may be transferred to another venue under 28 U.S.C. § 1404(a) "[f]or the convenience of parties and witnesses, in the interest of justice[.]" 28 U.S.C. § 1404(a). See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The moving party has the burden of establishing that a transfer is proper. Onyeneho v. Allstate Ins. Co., 466 F.Supp.2d 1, 3 (D.D.C.2006). As a threshold requirement, the transferee court must be in a district where the action "might have been brought." See 28 U.S.C. § 1404(a). If it is, then a court uses its broad discretion to balance case-specific factors related to the public interest of justice and the private interests of the parties and witnesses. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-30, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Trout Unlimited v. U.S. Dep't of Agric, 944 F.Supp. 13, 16 (D.D.C.1996). In the balancing, a "[p]laintiff's choice of forum is given paramount consideration and the burden of demonstrating that an action should be transferred is on the movant." Air Line Pilots Ass'n v. Eastern Air Lines, 672 F.Supp. 525, 526 (D.D.C.1987); see also DeLoach v. Philip Morris Cos., 132 F.Supp.2d 22, 24 (D.D.C.2000). Ultimately, if the balance of private and public interests favors a transfer of venue, then a court may order a transfer.

A. Venue in the Northern District of Texas

Under 28 U.S.C. § 1391(e),

[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) 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) the plaintiff resides if no real property is involved in the action.

The TSC Director resides in the Northern District of Texas. Moreover, the TSC oversees Aftab's adjustment of status application (Compl. ¶ 18), and has taken actions in processing Aftab's application by gathering evidence and fingerprints from Aftab. (Id. ¶¶ 18-20.) Aftab has also had multiple contacts with the TSC regarding the status of his adjustment application. (Id. ¶ 21.) This action could have been brought, then, in the transferee district.

B. Private Interests

The private interest factors typically considered include: 1) the plaintiff's choice of forum, 2) the defendant's choice of forum, 3) where the claim arose, 4) the convenience of the parties, 5) the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live trial testimony in one of the districts, and 6) the ease of access to sources of proof. Montgomery v. STG Int'l, Inc., 532 F.Supp.2d 29, 32-33 (D.D.C. 2008).

The first three factors weigh in favor of transfer. A plaintiff's choice of forum is ordinarily accorded deference. Id. However, if a plaintiff is not a resident of the forum and "most of the relevant events occurred elsewhere," this deference is weakened. Hunter v. Johanns, 517 F.Supp.2d 340, 344 (D.D.C.2007); see also Kafack v. Primerica Life Ins. Co., 934 F.Supp. 3, 6-7 (D.D.C.1996) (stating in support of a transfer that "the material events that constitute the factual predicate for the plaintiff's claims occurred" in the transferee district).

Aftab is a resident of Texas and...