                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,                          :
                                                   :       Civil Action No.:       13-265 (RC)
               v.                                  :
                                                   :       Re Document No.:        4
JAMES AND NANCY PRESTON,                           :
                                                   :
               Defendants.                         :


                                   MEMORANDUM OPINION

       The defendants have moved to dismiss this case for improper venue or, in the alternative,

to transfer it to the Eastern District of Virginia. Their motion will be denied.

                                 I. FACTUAL BACKGROUND

       In September 2012, Nancy Preston pled guilty to mail fraud, and was ordered to make

restitution to her employer, from whom she had embezzled hundreds of thousands of dollars. A

substantial portion of that judgment remains unsatisfied. The government alleges that several

months before she was charged, but after she had admitted her guilt to FBI agents, Mrs. Preston

deeded to her husband, James Preston, her interest in their house in Fairfax County, Virginia.

Compl. ¶¶ 2–3. Mr. Preston gave his wife ten dollars in consideration of the transfer, which the

government now seeks to void. Id. ¶ 3. The government alleges that Mrs. Preston did not

receive reasonably equivalent value for her interest in the house, and that she and her husband

made the transfer to hinder the satisfaction of the anticipated restitution judgment. It has filed a

fraudulent transfer complaint under the Federal Debt Collection Procedures Act, 28 U.S.C.

§ 3304. Pursuant to Federal Rule of Civil Procedure 12(b)(3), the Prestons have moved to

dismiss this case for improper venue or, in the alternative, to transfer it to the Eastern District of

Virginia.


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                                      II. LEGAL STANDARD

        “Rule 12(b)(3) instructs the court to dismiss or transfer a case if venue is improper or

inconvenient in the plaintiff’s chosen forum.” Poku v. FDIC, 752 F. Supp. 2d 23, 26 (D.D.C.

2010). “In considering a Rule 12(b)(3) motion, 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.” Williams v. GEICO

Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011) (quoting Pendleton v. Mukasey, 552 F. Supp. 2d 14,

17 (D.D.C. 2008)). But the court need not accept the plaintiff’s legal conclusions, Darby v. U.S.

Dep’t of Energy, 231 F. Supp. 2d 274, 277 (D.D.C. 2002), nor “inferences that are unsupported

by the facts set out in the complaint,” Herbert v. Sebelius, 2013 WL 656906, at *3 (D.D.C. Feb.

25, 2013) (citing Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)). “A court may [also]

consider material outside of the pleadings in ruling on a motion to dismiss for lack of

venue . . . .” Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002).

        “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). If venue is improper, “[t]he district court . . . shall dismiss, or if

it be in the interest of justice, transfer [the] case to any district or division in which it could have

been brought.” 28 U.S.C. § 1406(a). “The decision whether a transfer or a dismissal is in the

interest of justice . . . rests within the sound discretion of the district court.” Naartex Consulting

Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983).

        Even when venue is proper, however, “[f]or the convenience of parties and witnesses, in

the interest of justice, a district court may transfer any civil action to any other district or division

where it might have been brought . . . .” 28 U.S.C. § 1404(a). “The idea behind s. 1404(a) is



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that where a ‘civil action’ to vindicate a wrong—however brought in a court—presents issues

and requires witnesses that make one District Court more convenient than another, the trial judge

can, after findings, transfer the whole action to the more convenient court.” Continental Grain

Co. v. Barge F.B.L.-585, 364 U.S. 19, 26 (1960). “[T]he main purpose of section 1404(a) is to

afford defendants protection where maintenance of the action in the plaintiff’s choice of forum

will make litigation oppressively expensive, inconvenient, difficult or harassing to defend.”

Starnes v. McGuire, 512 F.2d 918, 927 (D.C. Cir. 1974) (en banc); accord Van Dusen v.

Barrack, 376 U.S. 612, 616 (1964) (“[T]he purpose of the section is to prevent the waste ‘of

time, energy and money’ and ‘to protect litigants, witnesses and the public against unnecessary

inconvenience and expense . . . .’” (quoting Continental Grain, 364 U.S. at 26, 27)). When

venue is properly laid in this district, “[t]ransfer elsewhere under Section 1404(a) must . . . be

justified by particular circumstances that render [this] forum inappropriate by reference to the

considerations specified in that statute. Absent such circumstances, transfer in derogation of

properly laid venue is unwarranted.” Starnes, 512 F.2d at 925–26.

       Section 1404(a) “vests ‘discretion in the district court to adjudicate motions for transfer

according to an “individualized, case-by-case consideration of convenience and fairness.”’”

Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 50 (D.D.C. 2000) (quoting Stewart Org., Inc. v.

Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen, 376 U.S. at 622)). And it “directs a

district court to take account of factors other than those that bear solely on the parties’ private

ordering of their affairs. The district court also must weigh in the balance the convenience of the

witnesses and those public-interest factors of systemic integrity and fairness that, in addition to

private concerns, come under the heading of ‘the interest of justice.’” Stewart Org., 487 U.S. at

30. The precise “standards to be considered in determining whether to grant or deny a section



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1404(a) motion to transfer are generally . . . left to the discretion of the trial court,” SEC v. Page

Airways, Inc., 464 F. Supp. 461, 463 (D.D.C. 1978), which is “broad” but “not untrammeled,”

Fine v. McGuire, 433 F.2d 499, 501 (D.C. Cir. 1970) (per curiam) (noting that the trial court

must “give consideration to the traditional [forum non conveniens] factors, including the

plaintiff’s choice of forum”).


                                          III. ANALYSIS

        A. Proper Venue

        The Prestons argue that venue is not proper in the District of Columbia because this case

does not satisfy the general venue statute. See 28 U.S.C. § 1391(b). The government’s primary

argument is that the court need not rely on the general venue statute, because the Federal Debt

Collection Procedures Act (“FDCPA”) includes a nationwide service of process provision that

also, implicitly, provides for nationwide venue. See 28 U.S.C. § 3004(b)(1). One judge in this

district has said that this is so, that the “[o]peration of [the FDCPA’s] nationwide service of

process provision . . . is not contingent on satisfaction of a separate venue provision. Instead, by

implication, [the FDCPA] suggests that absent a request for transfer, the venue in which the

action is brought is appropriate.” Reese Bros., Inc. v. U.S. Postal Serv., 477 F. Supp. 2d 31, 39

(D.D.C. 2007); accord SEC v. Brightpoint, Inc., 2011 WL 6778493 at *1 (S.D.N.Y. Dec. 21,

2011) (“Venue for proceedings under the FDCPA is set by 28 U.S.C. § 3004(b) . . . . Venue

under the FDCPA is proper in . . . any . . . federal court.”). The logic of this interpretation is that,

if the FDCPA allows for process to “be served in any State” and “enforced by the court” that

issues it, 28 U.S.C. § 3004(b)(1), and thereby provides for nationwide jurisdiction, see Bally

Gaming, Inc. v. Kappos, 789 F. Supp. 2d 41, 45 (D.D.C. 2011) (discussing cases in which “this

Court derives its personal jurisdiction over a defendant from a federal statute’s nationwide-


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service-of-process provision”), then it must contemplate that no court would dismiss an FDCPA

case for improper venue. Persuaded by that reasoning, the court concludes that venue is proper

under the FDCPA.1

       B. Mandatory Transfer

       The Prestons have, nonetheless, requested that the case be transferred. They argue that

transfer is mandated by 28 U.S.C. § 3004(b)(2), which provides that “[i]f the debtor so requests,

within 20 days after receiving the notice described in section 3101(d) or 3202(b), the action or

proceeding in which the writ, order, or judgment was issued shall be transferred to the district

court for the district in which the debtor resides.” 28 U.S.C. § 3004(b)(2) (emphasis added).

The defendants have not received—and, in this action, will never receive—“the notice described

in section 3101(d) or 3202(b).” Id. “[T]he notice described in section 3101(d),” id., must be

provided when the United States applies for a “prejudgment remedy” in “a civil action on a claim

for a debt,” id. § 3101(a)(1); see id. § 3101(d)(1) (“On filing an application by the United States

as provided in this section, the counsel for the United States shall prepare, and the clerk shall

issue, a notice for service on the debtor against whom the prejudgment remedy is sought . . . .”

(emphases added)). “[T]he notice described in section . . . 3202(b),” id. 3004(b)(2), is given

when the United States seeks a post-judgment remedy on a claim for debt, id. § 3202(b) (“On the

commencement by the United States of an action or proceeding under this subchapter to obtain a

remedy, the counsel for the United States shall prepare, and clerk of the court shall issue, a notice

       1
          The court also notes that it has personal jurisdiction over the defendants. As the D.C.
Circuit has held, “the requirement of ‘minimum contacts’ with a forum state is inapplicable
where the court exercises personal jurisdiction by virtue of a federal statute authorizing
nationwide service of process.” SEC v. Bilzerian, 378 F.3d 1100, 1106 n.8 (D.C. Cir. 2004)
(citing Briggs v. Goodwin, 569 F.2d 1, 8–10 (D.C. Cir. 1977), rev’d on other grounds sub nom.,
Stafford v. Briggs, 444 U.S. 527 (1980)). “In such circumstances, minimum contacts with the
United States suffice.” Id. There is no question that the Prestons, both of whom reside in
Virginia, satisfy this requirement.
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in substantially the following form . . . .” (emphasis added)); see id. §§ 3201–06 (Subchapter C,

“Postjudgment Remedies”).

       This case was brought under 28 U.S.C. § 3304, which governs fraudulent conveyance

actions and falls within subchapter D of the FDCPA. Because this is not a suit on a debt, the

defendants will not receive “the notice described in section 3101(d) or 3202(b),” id.

§ 3004(b)(2), and so cannot avail themselves of the FDCPA’s mandatory transfer provision, see

United States v. Sutton, 2005 WL 281162, at *4 (D. Conn. Jan. 10, 2005) (“Section 3004(b)(2)

. . . is inapplicable to . . . a fraudulent conveyance action commenced under . . . Subchapter D of

the FDCPA. . . . Section 3004(b)(2) permits defendants to transfer actions brought pursuant to

Subchapters B and C of FDCPA only, which . . . relate to prejudgment and postjudgment

collection remedies, not to fraudulent transfer actions.”); United States v. Greene, 2012 WL

1965620, at *3 (N.D. Okla. May 31, 2012).2

       C. Discretionary Transfer

       Although transfer is not mandatory under the FDCPA, the court may still grant the

defendants’ motion if this case “might have been brought” in another district and to transfer it

there would promote “the convenience of parties and witnesses” and “the interest of justice.” 28

U.S.C. § 1404(a). Before exercising that power, the court must engage in “an ‘individualized . . .

consideration of convenience and fairness,’” Stewart Org., 487 U.S. at 29 (quoting Van Dusen,



       2
           Because the FDCPA’s transfer provision does not apply to this case at all, the court
need not decide whether the transfer would in fact be mandatory if the provision did apply. Cf.
United States v. Matthews, 793 F. Supp. 2d 72, 75 (D.D.C. 2011) (concluding that, despite
apparently mandatory language of § 3004(b)(2), the FDCPA “allows a court to deny a timely
transfer motion for good cause, and good cause to deny transfer ordinarily would exist where
transfer is requested merely to delay or frustrate efforts to collect on restitution judgments”
(quoting United States v. Gipson, 714 F. Supp. 2d 571, 576 (E.D. Va. 2010))).



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376 U.S. at 622), that accounts for “the parties’ private ordering of their affairs,” as well as

“those public-interest factors of systemic integrity and fairness that, in addition to private

concerns, come under the heading of ‘the interest of justice,’” id. at 30.

        The government does not dispute that the case “might have been brought” in the Eastern

District of Virginia, see Pl.’s Opp. at 14 n.4, so the court must consider whether “the

convenience of parties and witnesses” and “the interest of justice” indicate that it should be

transferred there, 28 U.S.C. § 1404(a). In support of transfer, the Prestons argue that the Eastern

District of Virginia would be a more convenient forum, because all potential witnesses

(including the defendants) live in Virginia and the challenged transaction took place there. They

suggest that cases involving Virginia residents and Virginia property should, whenever possible,

be heard in the federal courts of that state. The defendants also assert that the Eastern District of

Virginia disposes of its cases more quickly and is more familiar with Virginia property law than

this court.

        The government makes three chief arguments in opposition to transfer. First, it suggests

that convenience is a minor factor in this case, as the federal courthouses in Alexandria, Virginia

and Washington, D.C. are roughly ten miles from each other. Second, the government suggests

that the interest of justice strongly favors having this case heard by the same judge who presided

over Mrs. Preston’s criminal case, which gave rise to this civil complaint. Finally, the

government emphasizes the deference traditionally accorded to a plaintiff’s choice of forum. See

Fine, 433 F.2d at 501 (Section 1404(a) “requires the court to give consideration to the traditional

factors, including the plaintiff’s choice of forum.”).

        The defendants reply that “this deference is mitigated if the plaintiffs’ choice of forum

has ‘no meaningful ties to the controversy and no particular interest in the parties or subject



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matter.’” Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d 124, 128 (D.D.C. 2001)

(quoting Chung v. Chrysler Corp., 903 F. Supp. 160, 165 (D.D.C. 1995), in turn quoting Islamic

Rep. of Iran v. Boeing Co., 477 F. Supp. 142, 144 (D.D.C. 1979)). That is true, but does not help

their cause. This court has a significant interest in both the parties and the subject matter of this

case, in which the government alleges that Nancy Preston made a fraudulent conveyance to

hinder the satisfaction of a restitution judgment that she expected (and in fact received) from this

court. The deference due to the government’s choice of forum and the court’s interest in the

subject matter of this case counsel strongly against transfer. “[T]he convenience of parties and

witnesses” is a minor concern where the alternative forum is a Metro ride away. 28 U.S.C.

§ 1404(a). And neither the efficiency with which that forum resolves its cases nor its familiarity

with Virginia law (which will at most play an incidental role in this FDCPA action) is enough to

outweigh the interests linking this court to this case.

                                        IV. CONCLUSION

       The court concludes that venue in this district is proper under the FDCPA, and that it

would not promote the interest of justice to transfer this case to the Eastern District of Virginia.

It will therefore deny the defendants’ motion.

                                                               Rudolph Contreras
                                                               United States District Judge

       Date: August 16, 2013




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