     14-1238
     Blakely v. Lew

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of April, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                DEBRA ANN LIVINGSTON,
 8                              Circuit Judges,
 9                GREGORY H. WOODS,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       JOHN KEITH BLAKELY, RHONDA L.
14       BLAKELY, THE ESTATE OF JOHN E. LONG,
15       THE ESTATE OF VIRGINIA E. LONG,
16                Plaintiffs-Appellants,
17
18                    -v.-                                               14-1238
19
20       JACOB E. LEW, Secretary of the U.S.
21       Department of the Treasury, in his
22       official capacity, JOHN KOSKINEN,



                *
               Judge Gregory H. Woods, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   Commissioner of the Internal Revenue
 2   Service, in his official capacity,
 3            Defendants-Appellees.**
 4   - - - - - - - - - - - - - - - - - - - -X
 5
 6   FOR APPELLANT:             JEFFREY M. BLUM, New York, New
 7                              York.
 8
 9   FOR APPELLEES:             BENJAMIN H. TORRANCE (with
10                              Christine Irvin Phillips, on the
11                              brief), for Preet Bharara,
12                              U.S. Attorney for the Southern
13                              District of New York, New York,
14                              New York.
15
16        Appeal from a judgment of the United States District
17   Court for the Southern District of New York (Furman, J.).
18
19        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20   AND DECREED that the judgment of the district court be
21   AFFIRMED.
22
23        John Keith Blakely, Rhonda L. Blakely, the estate of
24   John E. Long, and the estate of Virginia E. Long appeal from
25   the judgment of the United States District Court for the
26   Southern District of New York (Furman, J.), granting the
27   government defendants’ motion to dismiss for improper venue
28   pursuant to Federal Rule of Civil Procedure 12(b)(3). We
29   assume the parties’ familiarity with the underlying facts,
30   the procedural history, and the issues presented for review.
31
32        This appeal is a stage in appellants’ extended
33   litigation to recoup property they forfeited to the
34   government in a consent judgment that stemmed from a
35   criminal conviction. Appellants brought this suit in the
36   Southern District of New York after multiple adverse rulings
37   in the Eastern District of Michigan regarding their right to
38   recover their forfeited property. See, e.g., Blakely v.
39   United States, 276 F.3d 853 (6th Cir. 2002); United States
40   v. 6185 Brandywine Drive, 66 F. App’x 617 (6th Cir. 2003);
41   United States v. 6185 Brandywine Drive, No. 92-40157, 2007
42   WL 2049887 (E.D. Mich. July 17, 2007). The instant action
43   involves the same underlying claims and issue as the

         **
            The Clerk of Court is directed to amend the case
     caption as above.
                                  2
 1   previous lawsuits, turns on the same facts, and ultimately
 2   requests the same relief: recoupment from the Internal
 3   Revenue Service (“IRS”) of the value of appellants’
 4   forfeited property. However, the only issue in this appeal
 5   is whether venue is proper in the Southern District of New
 6   York. We conclude that it is not.
 7
 8        Because the district court held no factual hearings
 9   with respect to venue, this Court considers de novo whether
10   appellants set out a prima facie case for venue. Gulf Ins.
11   Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005).
12
13       The relevant venue statute provides:
14
15           A civil action in which a defendant is an
16           officer or employee of the United States
17           . . . acting in his official capacity . . .
18           may . . . be brought in any judicial district
19           in which . . . (B) a substantial part of the
20           events or omissions giving rise to the claim
21           occurred . . . .
22
23   28 U.S.C. § 1391(e)(1). To ascertain whether venue is
24   proper under 28 U.S.C. § 1391(b)(2), “a court should
25   identify . . . the acts or omissions that the plaintiff
26   alleges give rise to [the] claims,” and then “determine
27   whether a substantial part of those acts or omissions
28   occurred in the district where suit was filed.” Daniel v.
29   Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005).
30   Because the proffered grounds for venue in this case are so
31   insubstantial, we need not decide whether the venue
32   provision before us today, which falls under the Mandamus
33   and Venue Act, 28 U.S.C. § 1391(e), should be analyzed
34   differently from the general venue provision, 28 U.S.C.
35   § 1391(b), which was before the Daniel and Gulf Insurance
36   Co. Courts. In performing this analysis, courts must “take
37   seriously the adjective ‘substantial’” and “construe the
38   venue statute strictly.” Gulf Ins. Co., 417 F.3d at 357.
39   “That means for venue to be proper, significant events or
40   omissions material to the plaintiff’s claim must have
41   occurred in the district in question.” Id.
42
43        Appellants proffer two grounds for venue in the
44   Southern District of New York: when the IRS refused to
45   consider appellants’ forfeited property as a tax payment, it
46   communicated that refusal to appellants’ lawyer while he was
47   located in the Southern District; and their lawyer prepared

                                   3
 1   their tax refund claims from his office in the Southern
 2   District. These de minimis acts within the Southern
 3   District cannot satisfy this Court’s “substantiality”
 4   requirement for venue. See Daniel, 428 F.3d at 432-33.
 5   Simply put, such acts are not “significant events . . .
 6   material to the plaintiff’s claim,” and a contrary finding
 7   would not “construe the venue statute strictly.” Gulf Ins.
 8   Co., 417 F.3d at 357. The significant events that are
 9   material to this controversy include the execution of the
10   consent judgment, appellants’ forfeiture of their property,
11   and the government’s refusal to credit the forfeited
12   property as a tax payment. None took place within the
13   Southern District of New York. Therefore, venue is
14   improper.
15
16        Appellants’ theory would locate venue wherever
17   plaintiffs retain a lawyer, which would make meaningless the
18   obligation to “take seriously the adjective ‘substantial.’”
19   Id. This Court has held, in the context of 28 U.S.C.
20   § 1391(b), that a plaintiff’s “employ[ment of] a New York
21   law firm,” along with other connections to New York,
22   “fail[ed] to establish that a substantial part of the events
23   or omissions giving rise to the claim took place in New
24   York.” Friedman v. Revenue Mgmt. of N.Y., Inc., 38 F.3d
25   668, 672 (2d Cir. 1994) (internal quotation marks omitted).
26
27        There is no merit in appellants’ claim that the
28   district court abused discretion when it refused to transfer
29   their case to the District of Columbia. A district court is
30   required to transfer a case only “if it be in the interest
31   of justice.” 28 U.S.C. § 1406(a). The district court’s
32   decision whether to dismiss or transfer a case “lies within
33   the sound discretion of the district court.” Minnette v.
34   Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). Given
35   appellants’ unsuccessful history of litigation in the
36   Eastern District of Michigan, the district court did not
37   abuse its discretion by dismissing the case after concluding
38   that appellants’ attempt to bring their case in the Southern
39   District of New York constituted impermissible forum
40   shopping. See Spar, Inc. v. Info. Res., Inc., 956 F.2d 392,
41   395 (2d Cir. 1992) (affirming refusal to transfer venue when
42   “plaintiffs’ attempt to transfer the case was, in some
43   respect, forum shopping”).
44
45        Finally, the district court did not abuse discretion in
46   denying appellants’ motion for reconsideration. Under the
47   district court’s local rule providing for such a motion,

                                  4
 1   “[t]o be entitled to reargument, a party must demonstrate
 2   that the Court overlooked controlling decisions or factual
 3   matters that were put before it on the underlying motion.”
 4   Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000)
 5   (internal quotation marks omitted). Appellants’ motion
 6   appears to rely solely on arguments previously rejected by
 7   the district court.
 8
 9        For the foregoing reasons, and finding no merit in
10   appellants’ other arguments, we hereby AFFIRM the judgment
11   of the district court. The motion to take judicial notice
12   of an article from the New York Times is DENIED.
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16
17
18




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