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Friends of River v. United States Army Corps of Engineers

United States District Court, District of Columbia

November 22, 2016

Friends of the River, Plaintiff,
United States Army Corps of Engineers, et al., Defendants.



         Plaintiff Friends of the River brings the instant complaint alleging claims under the Freedom of Information Act (“FOIA”). Plaintiff alleges that defendants Army Corps of Engineers and Lieutenant General Todd T. Semonite (collectively “the Corps”) conducted an inadequate search for, and improperly withheld, records plaintiff is seeking pursuant to four separate FOIA requests made between April and June 2016 (“FOIAs 1-4”). Plaintiff seeks declaratory and injunctive relief to compel the Corps to perform reasonable searches, promptly produce improperly withheld records, and cease its patterns and practices that violate FOIA. Defendants have filed a Motion to Dismiss for Improper Venue or, Alternatively, to Transfer Venue, and include therein a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) with respect to the claims against individual defendant Lieutenant General Todd T. Semonite.

         Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court hereby Grants the Motion to Transfer for Improper Venue.[1] The case shall be transferred to the District of Columbia. The request to dismiss is Denied. In light of this ruling, the Court does not address defendants' motion to dismiss claims against individual defendant Lieutenant General Todd T. Semonite.


         Failure to file in a proper venue may be raised by motion pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure. When considering a motion to dismiss pursuant to Rule 12(b)(3), a court need not accept the pleadings as true and may consider facts outside of the pleadings. See Murphy v. Schneider National, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004); Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir.1996). Once the defendant has challenged the propriety of venue in the district, the plaintiff bears the burden of showing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). Facts supporting venue may be shown by declaration, affidavit, or other evidence. Ziegler Chemical and Mineral Corp. v. Standard Oil Company, 32 F.R.D. 241, 243 (N.D. Cal. 1962). Pursuant to 28 U.S.C. § 1406(a), if the court determines that venue is improper, the court must either dismiss the action or, if it is in the interest of justice, transfer the case to a district or division in which it could have been brought. Whether to dismiss for improper venue, or alternatively to transfer venue to a proper court, is a matter within the sound discretion of the district court. See King v. Russell, 963 F.2d 1301, 1304 (9th Cir.1992).


         I. Improper Venue

         This case arises out of four FOIA requests plaintiff submitted to the Corps' office in Sacramento, seeking documents related to the Corps' operation and maintenance of two dams on the Yuba River that adversely impact spring run Chinook salmon, steelhead trout, and green sturgeon, which are listed as threatened species under the Endangered Species Act. (Dkt. No. 1 at ¶ 1.) Plaintiff is also currently litigating an Endangered Species Act case against the Corps, and other defendants, related to the Corps' operation and maintenance of the two Yuba River dams in the Eastern District of California in Friends of the River v. National Marine Fisheries Service, et al., Case No. 2:16-cv-00818-JAM-EFB.

         To determine whether venue is proper, courts look to the venue provisions of 28 U.S.C. § 1391 unless the statute in question has a special venue provision. See Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 587 (9th Cir. 1991) (specific venue provision in statute applicable to particular case takes precedence over general venue rule). Here, plaintiff brings claims under FOIA, which has its own venue provision. FOIA provides for venue in either: (1) the judicial district where the plaintiff resides or has her principal place of business, (2) the judicial district where the agency records are situated, or (3) the District of Columbia. 5 U.S.C. § 552(a)(4)(B).

         With respect to venue, plaintiff's complaint alleges:

Venue in the United States District Court for the Northern District of California is proper under 5 U.S.C. § 552(a)(4)(B) because many of the records sought by the Plaintiff are likely situated in the Corps' South Pacific Division and San Francisco District offices located at 1455 Market St., San Francisco, California. There is no single United States District where all the records sought by the Plaintiff are likely situated, as various Corps' Division and District offices located throughout the United States, (including California, Oregon, Washington, New Mexico, Maine, New Hampshire, Massachusetts, Connecticut, New York, Pennsylvania, Maryland, and Delaware) as well as Corps headquarters in Washington D.C. may likely have responsive records. Of all the locations where venue would lie under 5 U.S.C. § 552(a)(4)(B), venue is most appropriate in the Northern District of California because Plaintiff's counsel is located in San Francisco and litigating the action in San Francisco will avoid the expense of having Plaintiff's counsel travel to a distant court and thus reduce the burdens and costs of litigation to Plaintiff, which is a nonprofit public interest organization with limited means.

(Dkt. No. 1 at ¶ 4.)

         In support of its argument that responsive records are located in this District, plaintiff presents evidence that documents responsive to a past search in another FOIA request concerning topics similar to those in two of the four FOIA requests at issue in this case (FOIAs 1 and 3) included records located in this District. (See Dkt. No. 14 at 6-7.) Plaintiff also argues that venue is proper in this District for the other two FOIA requests at issue (FOIAs 2 and 4) because FOIA 2 concerns biological opinions issued to the Corps for projects in the entire state of California, which necessarily includes this District, and because at least some of the facilities listed in FOIA 4 fall within this District.[2] (See id. at 7-8.) Plaintiff notes that, at a minimum, the Corps' San Francisco offices would have received copies of a legal memorandum, which it contends is responsive to FOIA 4, issued by Corps Headquarters to all Corps Division and District offices across the country. (See id at 7.)

         Little case law exists on this issue of whether the mere possibility that requested documents may be located in a district is sufficient to show proper venue. That which does suggests that venue is not proper. See, e.g., Rosiere v. Hawaii, 2016 WL 3408848, at *2 (D. Hawaii June 1, 2016) (where responsive FOIA documents located in multiple districts, venue is appropriate where plaintiff resides, in Washington, DC, or in separate actions in each of the districts where the documents at issue were located); O'Neill v. United States, 2007 WL 983143, at *7 (E.D. Wisc. March 26, 2007) (finding that, unless waived as a defense, venue for three FOIA documents located in Chicago would not be ...

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