United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE
Mark Dimondstein, President of the American Postal Workers
Union (APWU), asserts libel claims against Defendants Jerry
Stidman and Jonathan Kelley, two APWU members and-Dimondstein
alleges-longstanding critics of his leadership. Before the
Court is Defendants' motion to transfer or, in the
alternative, to dismiss the case for improper venue and lack
of personal jurisdiction. ECF No. 8. For the reasons
explained below, the Court will grant the motion and dismiss
the case for improper venue.
lives and works in the District of Columbia, where the APWU
is headquartered. ECF No. 1 ¶¶ 3, 6. He alleges
that in July 2019, while he was running for reelection,
Stidman, a resident of Indiana, posted on his blog a press
release and other material that defamed him, and Kelley, a
resident of Wisconsin, republished the material by posting a
link to Stidman's blog post on Facebook. Id.
¶¶ 3-4, 12, 20-24. He asserts one count of libel
against each Defendant. Id. ¶¶ 5-6.
Defendants do not contest those facts (other than that the
material was defamatory). See ECF No. 8-1. They add
that neither of them sent the material to the District of
Columbia by ordinary or electronic mail. Declaration of Jerry
Stidman, ECF No. 9-1 (“Stidman Decl.”) ¶ 7;
Declaration of Jonathan Kelley, ECF No. 9-1 (“Kelley
Decl.”) ¶ 7. Moreover, neither of them has been to
the District of Columbia since Stidman visited as a tourist
over 30 years ago. Stidman Decl. ¶ 4; Kelley Decl.
venue is challenged, the Court “accepts the
plaintiff's well-pled factual allegations regarding venue
as true, draws all reasonable inferences from those
allegations in the plaintiff's favor, and resolves any
factual conflicts in the plaintiff's favor.”
Pendleton v. Mukasey, 552 F.Supp.2d 14, 17 (D.D.C.
2008) (citing Darby v. Dep't of Energy, 231
F.Supp.2d 274, 276-77 (D.D.C. 2002)). The Court need not,
however, accept the plaintiff's legal conclusions as
true, Darby, 231 F.Supp.2d at 277, and may consider
material outside the pleadings. See Artis v.
Greenspan, 223 F.Supp.2d 149, 152 (D.D.C. 2002) (citing
Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)).
Although a defendant challenging venue must present facts
that defeat the plaintiff's assertion of venue, proving
venue remains the plaintiff's burden. Roland v.
Branch Banking & Tr. Corp., 149 F.Supp.3d 61, 67
(D.D.C. 2015). “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).
28 U.S.C. § 1391(b), venue is proper 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.”
pleads that venue is proper in the District of Columbia under
28 U.S.C. § 1391(b)(2) because Defendants'
“conduct was targeted to cause injury in this District
such that a substantial part of the events or omissions
giving rise to this claim occurred here.” ECF No. 1
¶ 2. He argues, in effect, that venue is appropriate
because he was injured here, where he lives and works. ECF
No. 13 at 1. The Court disagrees.
has the burden of showing that “a substantial part of
the events or omissions giving rise to [his] claim[s]
occurred” “in” the District of Columbia. 28
U.S.C. § 1391(b)(2). But it does not appear that
any of the events that gave rise to his claims
occurred here; they happened in Indiana and
Wisconsin. Another court in this District reached a
similar conclusion in a recent case in which Texas citizens
distributed material over the internet that allegedly defamed
an organization in the District of Columbia. See
Nigerians in Diaspora Org. Americas v. Ogbonnia, 203
F.Supp.3d 45, 47 (D.D.C. 2016) (dismissing the case for lack
of venue because the plaintiff “[had] not alleged that
any of the ‘events or omissions giving rise to the
claim[s],' occurred in the District of Columbia”
(second alteration in original)). Moreover, an allegation of
injury in this judicial district, without more, does not mean
that venue is proper here. As one court observed in a
contract case, “the fact that the plaintiff may feel
damages in the District of Columbia does not create
venue.” Abramoff v. Shake Consulting, L.L.C.,
288 F.Supp.2d 1, 5 (D.D.C. 2003). These decisions accord with
the well-recognized principle that “[b]ecause venue is
intended to protect defendants, ‘courts often focus on
the relevant activities of the defendant . . . in determining
where a substantial part of the underlying events
occurred.'” Great Socialist People's Libyan
Arab Jamahiriya v. Miski, 496 F.Supp.2d 137, 142 (D.D.C.
2007) (citing Abramoff, 288 F.Supp.2d at 4). And
there is no dispute that all Defendants'
“activities” that gave rise to Dimondstein's
claims occurred elsewhere. Venue may, of course, be
appropriate in more than one judicial district under §
1391(b)(2), and Dimondstein need not show that “every
event that supports an element of [his] claim occurred in the
district where venue is sought, ” Modaressi v.
Vedadi, 441 F.Supp.2d 51, 57 (D.D.C. 2006). Still, to
establish venue, he must show that a substantial
part of the events or omissions giving rise to his
claims occurred here. See 28 U.S.C. §
1391(b)(2). For the above reasons, he has not done
venue is improper, a district court may either 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). This decision is
committed to the sound discretion of the court. Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir.
1983). Generally, the interest of justice requires
transferring such cases to an appropriate judicial district
rather than dismissing them. See Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466-67 (1962).
argue that the Court should transfer the case to the Southern
District of Indiana, where they claim venue is proper. ECF
No. 8 at 7-8. Presumably they believe that “a
substantial part of the events or omissions giving rise to
the claim[s] occurred” there under 28 U.S.C. §
1391(b)(2). Stidman avers that he lives in Terre Haute,
Indiana, within that judicial district. Stidman Decl. ¶
2; 28 U.S.C. § 94(b)(2). He also states that he was
present in Indiana during the relevant time. Stidman Decl.
assuming venue would be proper in the Southern District of
Indiana, however, that alone does not mean transfer there is
appropriate. To transfer the case under 28 U.S.C.
§ 1406(a), this Circuit's precedent requires the
Court to determine that the transferee court would have had
personal jurisdiction over all defendants. Fam v. Bank of
Am. NA (USA), 236 F.Supp.3d 397, 410 (D.D.C. 2017);
see also Coltrane v. Lappin, 885 F.Supp.2d 228, 235
(D.D.C. 2012) (citing Sharp Elecs. Corp. v. Hayman Cash
Register Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981)).
Personal jurisdiction over Stidman in the Southern District
of Indiana is apparent because he resides there. Stidman
Decl. ¶ 2. And Kelley, for his part, asserts that he
would consent to personal jurisdiction there. Kelley Decl.
¶ 9. But the Supreme Court has interpreted 28 U.S.C.
§ 1404(a)-which includes language almost identical to
that in § 1406(a)-to require a potential transferee
court to possess personal jurisdiction over the defendants
when the complaint was filed. See Hoffman v. Blaski,
363 U.S. 335, 340-44 (1960). Nothing in the record here
suggests that a court in the Southern District of Indiana
could have asserted personal jurisdiction over Kelley when
this action began. See generally Kelley Decl. For
that reason, the Southern District of Indiana is not a
district in which this case “could have been
brought” under 28 U.S.C. § 1406(a).
Court must therefore dismiss the case for improper venue. The
Court notes that dismissal does not appear to bar
Dimondstein's claims by operation of a statute of
limitations in either Indiana or Wisconsin. Ind. Code Ann.
§ 34-11-2-4 (establishing a 2-year statute of
limitations); Wis.Stat. Ann. ...