                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 LARAY J. BENTON, et al.,

         Plaintiffs,
                 v.                                         Civil Action No. 15-843 (JEB)
 BANK OF AMERICA CORPORATION,
 et al.,

         Defendants.


                                    MEMORANDUM OPINION

       Pro se Plaintiffs LaRay and Georgia Benton have filed what appears to be a highly

complex 81-page Complaint naming eleven Defendants and asserting 35 separate counts. Closer

inspection reveals that the gravamen of the suit is fairly simple: allegedly improper actions taken

by financial entities to foreclose upon their homes. Multiple Defendants have now filed separate

Motions to Dismiss, which raise a farrago of defenses, including a lack of venue in this Court.

As neither of the Bentons’ houses is located in the District of Columbia and as none of the

actions complained of occurred here, the Court will grant the Motions in part and transfer the

case to the District of Maryland.

I.     Background

       Given the prolixity of Plaintiffs’ pleadings, the Court will not recite them chapter and

verse. It will, instead, limit its account to the facts relevant to the question of venue. To begin,

LaRay Benton lives in Mitchellville, Maryland, and Georgia Benton (whose precise familial

relationship to Mr. Benton is unclear) lives in Savannah, Georgia. See Compl. at 1. The

Complaint is entitled “Petition for Enforcement, Damages, and Relief of Previously Approved,


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Offered & Accepted Loan Modification Agreement” with a subheading of “Petition for Stay of

Pending Foreclosure[:] Maryland Docket No. CAEF14-29267.” Id. Ms. Benton’s central claim

is that Defendants improperly took “formal actions to present materially false misrepresentations,

affidavits, and other documents or vehicles to formally foreclose on her property, in ‘bad faith.’”

Compl. at 7. That property is located in Newport News, Virginia. See id. at 6. Similarly, Mr.

Benton “duly asserts that the prayers, motions, affidavits, and supporting documents filed in the

Circuit Court for Prince George’s County, Maryland[,] by [Defendant] OCWEN [Financial

Corporation] and/or their representatives is a willful and fraudulent ‘robo-signing’ and

misconduct, in ‘bad faith,’ with the specific intent to ‘foreclose’ on Mr. Benton’s property

located at 1731 STOURBRIDGE COURT, MITCHELLVILLE, MARYLAND 20721.” Id. at

18. There are further details of how a purported loan-modification package, which was related to

the same residence, went awry, again without any reference to activities in Washington. See id.

at 38-41.

       In Plaintiffs’ combined Opposition to Defendants’ Motions to Dismiss, the same facts are

amplified. For example, Plaintiffs also mention illegal debt collection committed by certain

Defendants via their filing suit in “Maryland District Court to formally collect the debt that Mr.

Benton owed . . . ,” ECF No. 32-1 (Opp.) at 10; the “foreclosure mediation proceedings held by

the Maryland Office of Administrative Hearings,” id. at 19; and Defendants’ continued efforts to

“systematically ‘harass’ and ‘oppress’ Mr. Benton through their routine and inaccurate

communications to him via phone and registered mail,” presumably directed to his Maryland

address. See id. at 23. The harms he characterizes, including “emotional and physical distress,

stress, anxiety, loss of sleep, and excessive weight loss,” id. at 44, all afflicted him in Maryland.




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II.     Legal Standard

        When a plaintiff brings suit in an improper venue, the district court “shall dismiss [the

case], 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); see also Fed. R. Civ. P. 12(b)(3) (defendant

may assert improper venue via motion). In considering a Rule 12(b)(3) motion to dismiss, 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.” Darby v. U.S. 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, see

id., and may consider material outside of the pleadings. 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)). “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); see also 14D Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 3826 (3d

ed. 2007) (noting that most federal courts place burden of establishing venue as proper on

plaintiff when defendant has made proper objection). To prevail on a motion to dismiss for

improper venue, however, “the defendant must present facts that will defeat the plaintiff’s

assertion of venue.” Khalil v. L-3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C.

2009). 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).




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III.     Analysis

         Defendants raise a bevy of defenses in seeking dismissal of the Complaint, but the Court

need look no further than the question of venue. Under 28 U.S.C. § 1391(b), 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”; (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.”

         Even though Plaintiffs cite only § 1391(b)(2) as their basis for venue, see Compl. at 7, the

Court will also look quickly at (b)(1). In considering this latter provision, it notes that the

Complaint lists none of the eleven Defendants as having District of Columbia residences. Even

if some of the corporate Defendants may be said to reside in the District – a question the Court

need not tackle – the one individual Defendant plainly does not. That suffices to defeat (b)(1)

venue.

         As to (b)(2), Defendants are correct that no relevant events occurred in this city, and the

property at issue is situated in Maryland and Virginia. In attempting to rebut Defendants’

argument, Plaintiffs only dig a bigger hole. They state, for instance, “Venue is appropriate in

this District pursuant to 28 U.S.C. [§] 1391(b)(2) and 12 U.S.C. [§] 5564(f), and because the

collective complaint is for actionable claims that happened in the United States District of

Virginia . . . .” ECF No. 43 (Opp. to Seterus Motion) at 2-3 (emphasis added). Title 12 U.S.C. §

5564 speaks only to suits brought by the Consumer Financial Protection Bureau, and the

underscored language is self-evidently not helpful to Plaintiffs’ venue argument. The Bentons



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also contend that “[v]enue is appropriate in this District . . . because the collective complaint is

for actionable claims that happened in both the Districts of Maryland and Virginia, and of which

the parties are not in close proximity.” Opp. at 2. Such opaque reasoning is difficult to follow,

but if Plaintiffs are contending that the District is convenient middle ground, such a split-the-

difference argument has no legal viability. Finally, the Bentons concede that “[i]n light of

plaintiffs’ residence, and the real property’s location, the alleged harm would have occurred in

Maryland . . . .” Id. at 32. Given the appropriate venue in Maryland, the Court need not consider

(b)(3), which is only operative where venue is not otherwise available.

        The only District of Columbia connection that Plaintiffs ever mention is the fact that the

“National Mortgage Settlement” and Consent Judgment relating to banks’ and loan servicers’

handling of mortgages was consummated here. See Compl. at 2-3. Although the Bentons do not

point this out, the Court is cognizant that the Consent Judgment does provide for enforcement in

the District of Columbia. See Ghaffari v. Wells Fargo Bank, N.A., 6 F. Supp. 3d 24, 30 (D.D.C.

2013). Yet, as this Court concluded in dismissing the claim in Ghaffari, third parties to

government consent decrees (such as the Bentons) cannot enforce such decrees absent an explicit

stipulation by the government to that effect, which this particular Consent Judgment does not

provide. Id. at 29. As a result, Plaintiffs cannot (and do not) contend that the Consent Judgment

somehow provides venue in this District for every case throughout the country claiming

wrongful foreclosure of property by the settling banks who were parties to the decree.

        When venue is improper, the Court must dismiss the suit or, “if it be in the interest of

justice, transfer [it] to any district or division in which it could have been brought.” 28 U.S.C. §

1406(a). Although the decision to transfer or dismiss is committed to the discretion of the

district court, the interest of justice generally requires transferring a case to the appropriate



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judicial district in lieu of dismissal. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962).

Here, the only conflict is whether to transfer to Virginia (where Ms. Benton’s property is

located) or Maryland (the site of Mr. Benton’s house). Given that the vast majority of the

allegations refer to the Maryland property, the Court believes that the interests of justice require

a transfer there, where the case could originally have been brought under 28 U.S.C. § 1391(b)(2).

IV. Conclusion

        For the foregoing reasons, the Court will grant in part Defendants’ Motions to Dismiss

and transfer the case to the District of Maryland. A separate Order consistent with this Opinion

will issue this day.


                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge
Date: February 9, 2016




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