                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

DALE F. WILLIAMS,                                  :
and MISTY L. WILLIAMS                              :
                                                   :
       Plaintiffs,                                 :       Civil Action No.:       13-02068 (RC)
                                                   :
       v.                                          :       Re Document Nos.:       12, 13
                                                   :
WELLS FARGO BANK N.A., et al.,                     :
                                                   :
       Defendants.                                 :

                                  MEMORANDUM OPINION

  GRANTING LEHMAN BROTHERS’ & SASCO’S MOTION TO DISMISS FOR IMPROPER VENUE;
          AND FINDING AS MOOT ALL OTHER MOTIONS PENDING IN THIS CASE


                                       I. INTRODUCTION

       Plaintiffs Dale F. Williams and Misty L. Williams (collectively, “Plaintiffs”), who are

proceeding pro se, bring this lawsuit against five defendants: Wells Fargo Bank, National

Association (“Wells Fargo”), Americas Servicing Company (“ASC”), U.S. Bank National

Association (“U.S. Bank”), Lehman Brothers Holdings, Inc. (“Lehman Brothers”), and

Structured Asset Securities Corporation (“SASCO”) (collectively, “Defendants”). See Compl.,

Dec. 31, 2013, ECF No. 1, at 1. The Plaintiffs allege that the Defendants violated a Consent

Judgment previously issued by this Court, as well as the Plaintiffs’ due process rights, thereby

intentionally inflicting emotional distress upon the Plaintiffs. See id. at 24, 29. The Plaintiffs seek

“equitable relief, statutory damages, actual damages, reasonable attorney’s fees, and costs” equal

to $3,000,000, as well as an injunction against any foreclosure of their property. See id. at 25, 36-

38.
        On March 13, 2014, Lehman Brothers and SASCO moved to dismiss the Complaint for

improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and for failure to state a

claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6);

alternatively, they also moved to transfer this case to another venue pursuant to 28 U.S.C. §

1404(a). See Lehman Brothers and SASCO’s Motion to Dismiss (“Defendants’ Motion”), ECF

No. 12, Mar. 13, 2014, at 1. Upon consideration of Lehman Brothers and SASCO’s motion and

the Plaintiffs’ opposition to this motion, the Court concludes for the reasons discussed below that

venue is improper and dismisses the action pursuant to 28 U.S.C. § 1406(a).


                                II. FACTUAL BACKGROUND

        The Plaintiffs’ Complaint provides the factual allegations outlined below. Plaintiffs are

homeowners, whose property is located in the town of Lake Worth within Palm Beach County,

Florida. See Compl., ECF No. 1, at 1-2, 68. Plaintiffs originally obtained a mortgage in January

2006 through New Century Mortgage Corporation. See id. at 4. Plaintiffs show that they signed a

mortgage agreement with New Century Mortgage Corporation in Palm Beach County, Florida,

see id. at 83, and that they signed an “Adjustable Rate Balloon Note” in Lake Worth, Florida, see

id. at 94.

        New Century Mortgage Corporation ceased its operations in Florida on October 19, 2007,

and “assigned” the Plaintiffs’ mortgage to U.S. Bank and Wells Fargo. See id. at 4, 10. Wells

Fargo also did business under the name ASC during subsequent transactions. See id. at 15. New

Century Mortgage Corporation later “assigned” the Plaintiffs’ mortgage and note to Lehman

Brothers, which subsequently pledged the note as collateral to SASCO. See id. at 16. These

entities are located in the following states: Wells Fargo, California; ASC, California; U.S. Bank,

Massachusetts; Lehman Brothers, New York; SASCO, New York. See id. at 1.


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        The crux of the Plaintiffs’ Complaint is that the Plaintiffs have been making mortgage

payments to the wrong entity due to the confusion regarding New Century’s assignment of their

mortgage. See id. at 14. Plaintiffs argue that allowing the Defendants to enforce the mortgage

violates a previously issued Consent Judgment, entered into by Wells Fargo and several other

banks in United States v. Bank of America Corp., et al., No. 12-0361 (D.D.C. Apr. 4, 2012). See

Compl., ECF No. 1, at 24-25. Plaintiffs also assert that the Defendants lack standing to enforce

the mortgage because none of the Defendants have ownership interest in the note and have not

proved possession of the note. See id. at 15-16. Additionally, Plaintiffs allege that this

enforcement constitutes a deprivation of their due process rights and that, by enforcing in this

manner, Defendants intentionally inflicted emotional distress upon them. See id. at 24, 29.


                                           III. ANALYSIS

                                         A. Legal Standard

        Federal Rule of Civil Procedure 12(b)(3) provides a basis for dismissing a complaint for

improper venue. See Fed. R. Civ. P. 12(b)(3). “To prevail on a motion to dismiss for improper

venue, the defendant must present facts that will defeat the plaintiff’s assertion of venue.”

Ananiev v. Wells Fargo Bank, N.A., 968 F. Supp. 2d 123, 129 (D.D.C. 2013) (internal citations

omitted). However, the burden remains on the plaintiff to prove that venue is proper when an

objection is raised, “since it is the plaintiff’s obligation to institute the action in a permissible

forum.” McCain v. Bank of America, No. 13-1418, 2014 U.S. Dist. LEXIS 11499, at *10 (Jan.

30, 2014); see also 14D Charles Alan Wright et al., Federal Practice and Procedure § 3826 (3d

ed. 2012) (“[W]hen [an] objection has been raised, the burden is on the plaintiff to establish that

the district he chose is a proper venue.”). In determining if venue is proper, courts must accept

the plaintiff’s well-pled factual allegations as true, resolve any factual conflicts in the plaintiff’s


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favor, and draw all reasonable inferences in favor of the plaintiff. See Hunter v. Johanns, 517 F.

Supp. 2d 340, 342 (D.D.C. 2007); Davis v. Am. Soc’y of Civil Eng’rs, 290 F. Supp. 2d 116, 121

(D.D.C. 2003). The court need not accept the plaintiff’s legal conclusions as true, 2215 Fifth St.

Assocs. v. U–Haul Int’l, Inc., 148 F. Supp. 2d 50, 54 (D.D.C. 2001), but the defendant must also

present facts that will defeat the plaintiff’s assertion of venue in order to prevail on the motion,

Hunter, 517 F. Supp. 2d at 342. If venue is improper, district courts are required to “dismiss, or if

it be in the interest of justice, transfer” a case pursuant to the federal venue statute, 28 U.S.C. §

1406(a). The decision whether to transfer or dismiss “rests within the sound discretion of the

district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983) (internal

citations omitted).


                                        B. Improper Venue

       Lehman Brothers and SASCO argue that venue is improper because none of the

defendants reside in Washington, D.C. and the events giving rise to the action occurred in

Florida. See Def.’s Mot., ECF No. 12-1, at 6. Venue is proper in a district where the defendant

resides if all defendants are residents of the State in which the district is located pursuant to 28

U.S.C. § 1391(b)(1), in a district where events giving rise to the claim took place pursuant to 28

U.S.C. § 1391(b)(2), or if there is no district in which an action may otherwise be brought, a

district in which any defendant is subject to the court’s personal jurisdiction with respect to such

action pursuant to 28 U.S.C. § 1391(b)(3). The Supreme Court has held that “[w]hether venue is

‘wrong’ or ‘improper’ depends exclusively on whether the court in which the case was brought

satisfies the requirements of the federal venue laws.” Atl. Marine Constr. Co. v. United States

Dist. Court, 134 S. Ct. 568, 577 (2013).




                                                   4
       Lehman Brothers and SASCO argue that venue cannot be justified under 28 U.S.C. §

1391(b)(1) because none of the Defendants reside in Washington, D.C. See Def.’s Mot., ECF

No. 12-1, at 6. The Plaintiffs do not address these assertions in their opposition memorandum. 1

See generally Pl.’s Mem. in Opp’n, ECF No. 14, Apr. 8, 2014, at 2-4. It is clear, however, from

the Complaint that the Plaintiffs do not allege that any Defendant resides in Washington, D.C.

See Compl., ECF No. 1, at 1 (listing Defendants addresses as being in California, Massachusetts,

and New York). Based on this determination, 28 U.S.C. § 1391(b)(1) cannot be used as a basis to

assert that venue is proper, as this district is not one in which any defendant resides, nor do all

Defendants reside in the District of Columbia.

       Next, Lehman Brothers and SASCO argue that 28 U.S.C. § 1391(b)(2) is not a basis for

venue because the events giving rise to the action occurred in Florida. See Def.’s Mot., ECF No.

12-1, at 6. The Plaintiffs’ Complaint does not allege any facts suggesting that the home’s

purchase or financing took place in the District of Columbia. See generally Compl., ECF No. 1.

On the contrary, the Complaint shows that the property at issue is in Lake Worth, Florida, see id.

at 68; that the mortgage agreement was signed in Palm Beach County, Florida, see id. at 83; and

that the “Adjustable Rate Balloon Note” was signed in Lake Worth, Florida, see id. at 94.

Nevertheless, Plaintiffs argue that venue is proper based on the Defendants’ violation of an

earlier, unrelated Consent Judgment. See id. at 2. But this Court has previously held that the

Consent Judgment is not a basis for proper venue. See, e.g., Conant v. Wells Fargo Bank, N.A.,

No. 13-572, 2014 U.S. Dist. LEXIS 19154, at *38 (D.D.C. Feb. 14, 2014) (finding venue was


       1
               Plaintiffs assert that the doctrine of res ipsa loquitor is applicable in this matter
and can be used as a basis for justifying venue. See Pl.’s Mem. in Opp’n, ECF No. 14, Apr. 18,
2014, at 3. However, res ipsa loquitor is a common law doctrine used in negligence actions
concerning a defendant’s liability. As the Complaint does not assert a negligence claim, this
argument is irrelevant for determining if venue is proper.


                                                  5
improper when an individual home owner attempted to enforce obligations imposed upon the

parties to the Consent Judgment). In other words, “reliance on the Unrelated Consent Judgment

as the basis for venue in the District of Columbia is simply misplaced.” McCain, 2014 U.S. Dist.

LEXIS 11499, at *21. And this Court agrees with those prior holdings.

        Finally, if there is no other district in which venue is appropriate, venue is proper in “any

judicial district in which any defendant is subject to the court’s personal jurisdiction with respect

to such action.” 28 U.S.C. § 1391(b)(3). In this action, venue would be proper in the Southern

District of Florida because the property at issue is located in Palm Beach County. Because there

is another district in which venue would be appropriate, the Court need not determine if the

requirements of personal jurisdiction have been met with respect to the Defendants. See McCain,

2014 U.S. Dist. LEXIS 11499, at *19-20 (finding that a court need not determine if personal

jurisdiction exists for the purposes of 28 U.S.C. § 1391(b)(3) when another district was

appropriate).

        In sum, it is clear that venue is improper in this case because none of the defendants

reside in the District of Columbia, the property at issue is not located in the District of Columbia,

and the home’s financing did not take place in the District of Columbia. Furthermore, the

unrelated Consent Judgment cannot be used as a basis for venue in the instant case. The Court

therefore concludes that venue in this jurisdiction is improper.

                                            C. Dismissal

        Lehman Brothers and SASCO argue that Plaintiffs’ Complaint should be dismissed for

lack of venue in the interest of justice. See Def.’s Mot., ECF No. 12-1, at 6-7. After a court has

determined that venue is improper, it is required to “dismiss, or if it be in the interest of justice,

transfer” a case pursuant to the federal venue statute, 28 U.S.C. § 1406(a). The decision whether




                                                   6
to transfer or dismiss “rests within the sound discretion of the district court.” Naartex Consulting

Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983) (internal citations omitted). Although the

“interest of justice” generally requires courts to transfer cases rather than dismiss them, see

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962); Darby v. U.S. Dep’t of Energy, 231 F.

Supp. 2d 274, 277 (D.D.C. 2002), dismissal is appropriate when transfer of the case “would only

‘delay the inevitable’ and [would] not be ‘in keeping with the Supreme Court’s instruction to the

lower federal courts to weed out insubstantial suits expeditiously.’” McCain v. Bank of America,

No. 13-1418, 2014 U.S. Dist. LEXIS 11499, at *23 (citing Simpkins v. District of Columbia, 108

F.3d 366, 370 (D.C. Cir. 1997)); see also Buchanan v. Manley, 145 F.3d 386, 389 n.6 (D.C. Cir.

1998) (finding that dismissal was proper when there were “substantive problems” with the

plaintiff’s claims).

        A review of the Plaintiffs’ Complaint makes clear that there are substantive problems

with the two causes of action asserted. Plaintiffs first assert an enforcement action against the

Defendants, claiming that they violated the Consent Judgment. See Compl., ECF No. 1, at 24.

“Enforcement actions regarding the Consent Judgment, however, may only be brought by a

‘Party to this Consent Judgment or the Monitoring Committee.’” Conant, 2014 U.S. Dist. LEXIS

19154, at *38 (holding that individual mortgagees were not parties to the Consent Judgment); see

also McCain, 2014 U.S. Dist. LEXIS 11499, at *20 (holding that the Consent Judgment “simply

does not create a private right of action”). Here, Plaintiffs are individual mortgagees who were

not parties to the Consent Judgment nor were they members of the Monitoring Committee. See

Compl., ECF No. 1, at 2-3. Accordingly, Plaintiffs’ claims relating to the violations of the

Consent Judgment would fail if transferred.




                                                  7
        Plaintiffs also allege that the Defendants violated their due process rights when the

Defendants took possession of the property’s note, but this allegation also has significant

substantive problems. 2 See id. at 31. Specifically, “[i]n order to trigger the Due Process Clause of

the Fourteenth Amendment, or a comparable federal action to invoke the Fifth Amendment,

there must be a state action.” Simms v. District of Columbia, 699 F. Supp. 2d 217, 224 (D.D.C.

2010) (internal citations omitted). The Due Process Clause does not protect against “private

conduct, however discriminatory or wrongful.” Jackson v. Metro. Edison Co., 419 U.S. 345, 349

(1974); see also United States v. Prop. Identified as Lot Numbered 718, 983 F. Supp. 9, 11

(D.D.C. 1997) (“While [plaintiff] may face eviction if her lender forecloses on the residence, that

‘seizure’ by a strictly private actor does not trigger the due process clause.”). Here, Wells Fargo,

ASC, U.S. Bank, Lehman Brothers, and SASCO are all private entities. See McCain, 2014 U.S.

Dist. LEXIS 11499, at *40-41 (dismissing due process claim brought against non-state actor). As

no state action exists in the instant case, the Plaintiffs’ due process claim would also fail if

transferred. The Court therefore concludes that transferring this action to a proper venue would

only “delay the inevitable” and therefore dismisses the Plaintiffs’ claims for lack of venue. 3


        2
                Plaintiffs also assert a claim for intentional infliction of emotional distress in their
second cause of action. See Compl., ECF No. 1, at 29. This allegation, however, fails to state a
claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Specifically, Plaintiffs make a singular allegation that “the Defendants intentionally inflicted
emotional distress knowing that they and their client and co-conspirators do not have standing to
claim a legitimate interests in [the Plaintiffs’] residence.” Id. Even if the Court recognized this
legal conclusion as true, it would fail because the allegation is factually deficient. For example,
no facts are alleged regarding Defendants’ extreme or outrageous conduct nor are any facts
alleged regarding a causal relationship between that conduct and the severe emotional distress
suffered by the Plaintiffs. See Morris v. Carter Global Lee, Inc., No. 12-01800, 2013 WL
5916816, at *10 (D.D.C. Nov. 5, 2013) (dismissing intentional infliction of emotional distress
claim when the plaintiff's allegations “did not rise to the level of severe and outrageous
conduct”).
        3
              Also pending before the Court is a motion by Lehman Brothers and SASCO to
dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on similar grounds.


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                                     IV. CONCLUSION

       For the foregoing reasons, the Court grants the Defendants’ motions to dismiss for

improper venue. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: June 26, 2014                                            RUDOLPH CONTRERAS
                                                                United States District Judge




See Def.’s Mot., ECF No. 12-1, at 1. Because the Court is dismissing the action for lack of
venue, it need not address Lehman Brothers and SASCO’s argument that the Plaintiffs failed to
state a claim upon which relief can be granted. Separately, Wells Fargo and U.S. Bank also
moved to dismiss the Complaint pursuant to Rule 12(b)(6). See Wells Fargo and U.S. Bank’s
Motion to Dismiss, ECF No. 13, Mar. 13, 2014, at 1. The Court denies this motion as moot.


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