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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

____________________________________

)

The Hispanic Leadership Fund, Inc., )

) Civil Case No. 4:12-cv-00339-JAJ-TJS

Plaintiff, )

)

v. ) RESPONSE AND OPPOSITION TO

) DEFENDANT’S MOTION TO

Federal Election Commission, ) TRANSFER VENUE

)

Defendant. )

____________________________________)

The U.S. District Court for the Southern District of Iowa should deny Defendant Federal 

Election Commission’s Motion to Transfer Venue under 28 U.S.C. §§ 1404(a) and 1406(a)

because venue is proper in the Southern District of Iowa under 28 U.S.C. § 1391(e), and

Defendant has failed to show that a transfer of venue is clearly more convenient for the parties and 

in the interest of justice. 

28 U.S.C. §1404(a) provides, “For 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 or to any district or division to which all parties have consented.” 28 

U.S.C. § 1406(a) provides, “The district court of a district in which is filed a case laying venue in 

the wrong division or district shall 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.”

As the moving party, Defendant bears the burden of establishing that transfer of venue is 

proper. Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F. 3d 688, 695 (8th Cir. 1997); Milliken 

& Co. v. FTC, 565 F. Supp. 511, 517 (D. S.C. 1983). Further, “unless the balance is strongly in 

favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” Gulf Oil Corp. 

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v. Gilbert, 330 U.S. 501, 508 (1947); see also Terra Int’l, 119 F. 3d at 695 (“In general, federal 

courts give considerable deference to a plaintiff’s choice of forum . . . .”); Golconda Mining Corp.

v. Herlands, 365 F. 2d 856, 857 (2nd Cir. 1966) (“plaintiff’s choice of forum is a factor to be 

accorded substantial weight”); Milliken, 565 F. Supp. at 515; Sissel v. Klimley, No. 08-62, 2009 

U.S. Dist. LEXIS 28426, at *5-7 (S.D. Iowa Mar. 16, 2009).

Venue is proper in the Southern District of Iowa. The very purpose of 28 U.S.C. § 1391(e) 

“was indeed to broaden the number of places where federal officials and agencies could be sued.” 

Reuben H. Donnelley Corp. v. FTC, 580 F. 2d 264, 267 (7th Cir. 1978); see Stafford v. Briggs, 444 

U.S. 527, 544 (1980) (“Without doubt, under § 1391(e), venue lies in every one of the 95 federal 

districts, and suits may be pending in a dozen or several dozen at any one time.”). Under 28 

U.S.C. § 1391(e)(1), because Defendant is an agency of the United States, this action is proper in a 

judicial district where “a substantial part of the events or omissions giving rise to the claim 

occurred.” Venue is not proper only where most of the events giving rise to the claim occurred in 

the best forum, but venue lies in any district where a substantial part of the events giving rise to 

the claim occurred. Setco Enter., Corp. v. Robbins, 19 F. 3d 1278, 1281 (8th Cir. 1994) (“we ask 

whether the district the plaintiff chose had a substantial connection to the claim, whether or not 

other forums had greater contacts”); Catipovic v. Turley, No. 11-3074, 2012 U.S. Dist. LEXIS 

79824, at *41-44 (N.D. Iowa June 8, 2012); Wells’ Dairy, Inc. v. Estate of Richardson, 89 F. 

Supp. 2d 1042, 1052-54 (N.D. Iowa 2000). Venue focuses on the actions of the defendant to 

prevent the defendant being sued in a court that has no connection to the claim. Woodke v. Dahm, 

70 F. 3d 983, 985-86 (8th Cir. 1995) (holding that mere residence of the plaintiff in a judicial 

district was insufficient to establish venue based on a “substantial part of the events or omissions 

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giving rise to the claim”).1 A “substantial part” of the events can be as minimal as receiving a 

letter in a certain district where receipt of a letter is part of the claim, or holding a meeting to agree 

to a business relationship in a certain district even though all other events giving rise to the claim 

occurred outside the district. Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867-68 (2nd Cir. 

1992); Andrean v. Sec’y of the U.S. Army, 840 F. Supp 1414, 1422-23 (D. Kan. 1993) (describing 

what constitutes a “substantial part”); Catipovic, 2012 U.S. Dist. LEXIS, at *41-57. 

The injury to Plaintiff’s constitutional rights is occurring in the state of Iowa, in particular 

the Southern District of Iowa, where Plaintiff wishes to distribute its proposed advertisements. 

See Affidavit of Mario Lopez, attached as Exhibit 9. If Plaintiff entered into a contract with 

television stations in Iowa to distribute its advertisements and breached that contract, venue would 

certainly lie in the Southern District of Iowa for an action based on that contract. Instead, Plaintiff 

cannot enter into a contract to distribute its advertisements in Iowa because, due to Defendant 

FEC’s failure to reach a decision on similar advertisements, it does not know what its legal 

obligations under the Federal Election Campaign Act would be. This is not a situation where 

Plaintiff has arbitrarily chosen the Southern District of Iowa or the only connection to Iowa will be

a later statutory enforcement action. C.f. Rogers v. Civil Air Patrol, 129 F. Supp. 2d 1334, 1338-

39 (M.D. Ala. 2001) (holding venue did not lie under 28 U.S.C. § 1391(e)(1)(B) where the only 

connection of a federal defendant to the district was the defendant’s performance of the 

requirements of the challenged statute sometime in the future). Plaintiff’s claims are inextricably 

geographically linked to Iowa as Plaintiff cannot reach the citizens of Iowa with its messages 

about important public policy issues without airing its advertisements in Iowa. In this case, 

Plaintiff’s damages—the infringement of its constitutional rights—are identical to the basis of its 

claim. As the injury to Plaintiff’s constitutional rights is occurring in Iowa, a substantial part of 

 

1 As Defendant FEC notes in its motion, this decision is based on identical language to 28 U.S.C. § 1391(e)(1)(B) in 

28 U.S.C. § 1391(b)(2). 

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the events giving rise to Plaintiff’s claim occurred in Iowa. Therefore, venue is proper in this 

court.

Where venue is proper in the original forum, transfer “must . . . be justified by particular 

circumstances that render the transferor forum inappropriate by reference to the considerations 

specified in that statute.” Starnes v. McGuire, 512 F. 2d 918, 925 (D.C. Cir. 1974). There are 

three statutory categories of factors that determine whether transfer is proper: the convenience of 

the parties, the convenience of the witnesses, and the interests of justice. 28 U.S.C. § 1404(a); 

Terra Int’l, 119 F. 3d at 691. It is proper for a court deciding a motion for transfer to consider 

additional factors to make an “individualized, case-by-case consideration of convenience and 

fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. 

Barrack, 376 U.S. 612, 62 (1964)). 

In the categories of convenience of the parties and witnesses, the Eighth Circuit has 

considered factors such as the convenience of the parties, the convenience of the witnesses, the 

willingness of witnesses to appear, the ability to subpoena witnesses, the adequacy of deposition 

testimony, the accessibility to records and documents, the location where the conduct complained 

of occurred, and the applicability of each forum state’s substantive law. Terra Int’l, 119 F. 3d at 

696; see also Gulf Oil, 330 U.S. at 508. In the interest of justice category, the Eighth Circuit has 

considered factors such as judicial economy, the plaintiff’s choice of forum, the defendant’s 

preference of forum, the costs to the parties of litigating in each forum, ability to enforce a 

judgment, congestion of the two courts, conflict of law issues, and the advantages of having a 

local court determine questions of local law. See Terra Int’l, 119 F. 3d at 696; Terra Int’l, Inc. v. 

Mississippi Chem. Corp., 922 F. Supp. 1334, 1364 (N.D. Iowa 1996) (citing Jumara v. State Farm 

Ins. Co., 55 F. 3d 873, 878-80 (3rd Cir. 1995)).

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A number of factors are equal in this case. The issues in this case are matters of federal 

law: Plaintiff’s First Amendment rights and the Federal Election Campaign Act. No non-party 

witnesses are anticipated. An injunction and declaratory judgment issued by a federal court would 

be enforceable in any federal court. All records and documents at issue are matters of public 

record, are available electronically, or have been submitted to the court by Plaintiff as exhibits. 

Thus, the choice of law, witness, enforceability, and accessibility of documents considerations are 

irrelevant. 

The convenience of the parties and comparative costs are the only factors that weigh in 

favor of transfer, and the difference in convenience and costs is not substantial enough to meet 

Defendant’s high burden of proof to overcome the preference given to Plaintiff’s choice of forum. 

See Terra Int’l, 119 F. 3d at 695. The fact that another forum is more convenient for the moving 

party is, by itself, an insufficient reason to require transfer. See SEC v. Savoy Indus., Inc., 587 F. 

2d 1149, 1156 (D.C. Cir. 1978). The District Courts of the District of Columbia and Eastern 

District of Virginia are closer to both Plaintiff’s and Defendant’s place of business, and transfer to 

either would save counsel the costs of traveling to Iowa. The Plaintiff chose the Southern District 

of Iowa, however, because that is where the harm to its rights is occurring. 

Defendant FEC is currently defending cases in Wyoming, Kentucky, North Carolina, Ohio, 

and the Seventh Circuit. Free Speech v. FEC, No. 12-127 (D. Wyo. filed June 14, 2012); Conway 

for Senate v. FEC, No. 12-244 (W. D. Ky. filed May 10, 2012); Koerber v. FEC, No. 08-39 (E.D. 

N.C. filed Oct. 3, 2008); Miller v. FEC, No. 12-242 (S.D. Ohio filed Mar. 26, 2012); Beam v. 

Hunter, FEC Chairman, No. 11-3386 (7th Cir. filed Oct. 21, 2011). Defendant FEC has not filed 

a motion to transfer venue in any of those cases. Id. In addition, Defendant FEC actively 

defended three cases in the Eighth Circuit in recent years without filing a motion to transfer in any 

of them. Minn. Citizens Concerned for Life v. FEC, 113 F. 3d 129 (8th Cir. 1997) (originating in 

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D. Minn.); Liffrig v. FEC, No. 05-123 (D. N.D. Apr. 16, 2007); Miles for Senate v. FEC, No. 01-

83 (D. Minn. Jan. 10, 2002). 

With modern electronic filing, the only additional cost to the litigants of venue in Iowa is 

the cost of traveling to Iowa for hearings, particularly since the anticipated number of hearings in 

this matter is minimal. Such costs are insubstantial in comparison to the overall total cost of 

litigation. Therefore, while it would be more convenient to Defendant to litigate this case in the 

District of Columbia or Virginia, the difference in convenience is not sufficiently substantial to 

outweigh Plaintiff’s choice of forum.

The location of the conduct weighs in favor of denying transfer. Defendant FEC’s failure 

to reach a decision on the American Future Fund advisory opinion request occurred in the District 

of Columbia, and any enforcement action under the Federal Election Campaign Act would 

originate in the District of Columbia. However, the injury to Plaintiff’s constitutional rights is 

occurring in Iowa and the FEC (as shown in the previous paragraph) routinely litigates cases in 

federal courts across the country. Plaintiff desires to air its proposed advertisements in Iowa but is 

prevented from doing so by the uncertain application of the Federal Election Campaign Act’s 

disclosure requirements. The location of the conduct suggests that Iowa is the proper forum to 

hear Plaintiff’s case.

Judicial economy also weighs in favor of denying transfer. “Relative docket congestion 

and potential speed of resolution is an appropriate factor to be considered.” Starnes, 512 F. 2d at 

932; see also Gulf Oil, 330 U.S. at 508. The most recent case brought against the Federal Election 

Commission seeking a preliminary injunction in the United States District Court for the District of 

Columbia was filed on June 22, 2012, and a hearing on the preliminary injunction is scheduled for 

September 6, 2012. McCutcheon v. FEC, No. 12-1034 (D. D.C. filed June 22, 2012). The most 

recent case brought against the Federal Election Commission seeking a preliminary injunction in 

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the United States District Court for the Eastern District of Virginia was filed on July 30, 2008. A 

preliminary injunction hearing was held on September 10, 2008. Real Truth About Obama, Inc. v. 

FEC, No. 08-483 (E.D. Va. Filed July 30, 2008). Based on the most recent treatment of motions 

for preliminary injunctions against the Federal Election Commission, Plaintiff fears that the 

ninety-day electioneering communications period at issue here will be essentially over by the time 

either of the FEC’s proposed federal districts is able to schedule a hearing to address the motion 

for preliminary injunction. Plaintiff has elected to air advertisements in this district, and its rights 

are being harmed here. 

Plaintiff has requested expedited review of its motion for a preliminary injunction to 

minimize the infringement on its constitutional rights. This court has already scheduled a hearing 

and is moving expeditiously to consider Plaintiff’s case. Transfer to another forum would 

necessarily delay the hearing and delay the adjudication of Plaintiff’s important constitutional 

rights. These constitutional rights will start being violated as early as August 4 or 7, 2012, which 

is the date the electioneering communications period for President Obama begins. Considerations 

of judicial economy suggest strongly that the motion to transfer should be denied.

Most significantly, Plaintiff chose Iowa as the forum for its case. Plaintiff’s choice of 

forum should not be disturbed, unless the balance of other factors in favor of Defendant’s choice 

of forum weigh strongly in favor of transfer. Gulf Oil, 330 U.S. at 508; Terra Int’l, 119 F. 3d at

695; Golconda, 365 F. 2d at 857; Milliken, 565 F. Supp. at 515. Defendant has failed to prove that 

the other factors weigh strongly in favor of transfer. At best, the factors are equal, and a “tie is 

awarded to the plaintiff.” In re National Presto Industries, 347 F. 3d 662, 665 (7th Cir. 2003); see 

also Van Dusen, 376 U.S. at 645-46 (“Section 1404 (a) provides for transfer to a more convenient 

forum, not to a forum likely to prove equally convenient or inconvenient.”); Setco Enter., 19 F. 3d 

at 1281. As movant, Defendant has a high burden of proving that the transferee district is 

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sufficiently more convenient or more just to overcome Plaintiff’s choice of forum. Defendant has 

failed to meet its burden.

For the foregoing reasons, the Court should deny Defendants’ Motion to Transfer Venue to 

the U.S. District Court for the District of Columbia or the Eastern District of Virginia. Defendant 

has not met its high burden of proof and Plaintiff respectfully requests this court defer to its choice 

of venue.

Dated: August 6, 2012 By: /S/Matt Dummermuth

Matt Dummermuth (AT0002215)

mdummermuth@whgllp.com

WHITAKER HAGENOW & GUSTOFF, LLP

305 Second Avenue SE, Suite 202

Cedar Rapids, IA 52401

Phone: 319-730-7702

Fax: 319-730-7575

Jason Torchinsky (Lead Counsel)

jtorchinsky@hvjlaw.com

Shawn Sheehy

ssheehy@hvjlaw.com

Lisa Dixon

ldixon@hvjlaw.com

HOLTZMAN VOGEL JOSEFIAK PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

Phone: 540-341-8808

Fax: 540-341-8809

Counsel for The Hispanic Leadership Fund, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on August 6, 2012, copies of the foregoing Response and Opposition 

to Defendant’s Motion to Transfer Venue by electronic service and U.S. first class mail on the 

following parties:

VIA ELECTRONIC SERVICE

Federal Election Commission

999 E Street, NW

Washington, DC 20463

And

VIA U.S. FIRST CLASS MAIL

Nicholas A. Klinefeldt

U.S. Attorney for the Southern District of Iowa

U.S. Courthouse Annex

110 East Court Avenue, Suite # 286

Des Moines, Iowa 50309-2053

/s/ Matt Dummermuth

MATT DUMMERMUTH

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