1 

UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF IOWA 

CENTRAL DIVISION 

 ) 

THE HISPANIC LEADERSHIP ) 

FUND, INC., ) Civ. No. 4:12-339-JAJ-TJS 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) REPLY IN SUPPORT OF MOTION 

) TO TRANSFER VENUE 

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN SUPPORT 

OF MOTION TO TRANSFER VENUE 

Pursuant to Local Rule 7.g, Defendant Federal Election Commission respectfully submits 

this reply brief in support of its Motion to Transfer Venue (Docket No. 16). Plaintiff Hispanic 

Leadership Fund’s (“HLF’s”) opposition to the Commission’s motion contains three new and 

unanticipated assertions, each of which is misleading, irrelevant, or both. 

First, plaintiff states — contrary to settled precedent in this Circuit for venue motions 

under 28 U.S.C. § 1406 — that “Defendant bears the burden of establishing that transfer of 

venue is proper.” (Pl.’s Resp. & Opp. to Def.’s Mot. to Transfer Venue at 1 (Docket No. 17) 

(“Pl.’s Venue Opp.”).) Although the Commission bears the burden of persuasion regarding the 

Commission’s alternative request to transfer venue for the convenience of the parties pursuant to 

28 U.S.C. § 1404, that is not the standard for the Commission’s primary basis for transferring 

this case to cure improper venue pursuant to 28 U.S.C. § 1406. (FEC Venue Br. at 3-6.) To the 

contrary, “‘[o]nce a defendant raises the issue of proper venue by motion, the burden of proof is 

placed upon the plaintiff to sustain venue.’” Zamora Entm’t, Inc. v. William Morris Endeavor 

Case 4:12-cv-00339-JAJ-TJS Document 18 Filed 08/07/12 Page 1 of 4
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Entm’ts, LLC, 667 F. Supp. 2d 1032, 1036 n.3 (S.D. Iowa 2009) (emphasis added) (quoting 

15 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3826 (3d ed. Supp. 2004), and 

noting Wright & Miller’s description of “clear weight of authority” establishing that burden is 

plaintiff’s); see, e.g., Cohen v. Newsweek, Inc., 312 F.2d 76, 78 (8th Cir. 1963) (observing that 

district court properly found that plaintiff had burden of establishing venue in forum); 

Transocean Group Holdings Pty Ltd. v. S. Dak. Soybean Processors, LLC, 505 F. Supp. 2d 573, 

578 (D. Minn. 2007) (“Where venue is challenged by a defendant, plaintiff bears the burden of 

proving that venue is proper in the forum state.”) (internal quotations omitted); Beckley v. Auto 

Profit Masters, LLC, 266 F. Supp. 2d 1001, 1003 (S.D. Iowa 2003) (same). 

Second — contrary to the Eighth Circuit’s decision in Woodke — plaintiff claims that the 

propriety of venue in this District is supported by a new affidavit stating that HLF has received 

an offer to purchase advertising time in Iowa and would accept that offer “[i]f the nature of 

[HLF’s] obligations under the Federal Election Campaign Act were clear.” (Pl.’s Venue Opp. at 

3 & Exh. 9.) But this statement is functionally identical to plaintiff’s earlier and equally 

deficient allegation that it wished to advertise “in Iowa and other states” and is beside the point. 

(Compl. ¶ 46.) Plaintiff persists in conflating its own intentions and alleged injuries with the 

“events and omissions giving rise to [plaintiff’s] claim.” 28 U.S.C. § 1392(e)(2). But Eighth 

Circuit case law is to the contrary. Such “events and omissions” are the “relevant activities of 

the defendant, not of the plaintiff.” Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995) 

(emphasis added); see Def. FEC’s Br. in Supp’t of Mot. to Transfer Venue at 3-5 (Docket No. 

16-1) (collecting cases). 

Third, HLF notes that the Commission is currently defending lawsuits in various districts 

across the country and has not moved to transfer those matters. (See Pl.’s Venue Opp. at 5.) But 

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that is entirely irrelevant to the Commission’s motion to transfer this case for improper venue 

under section 1406. And to the extent the Commission’s other lawsuits are relevant to its 

alternative motion to transfer this case for the convenience of the parties under section 1404, the 

other suits demonstrate precisely why this case should be transferred: Each of the cases HLF 

cites was filed in the respective plaintiff’s home district. See, e.g., Conway for Senate v. FEC

(W.D. Ky. Civ. No. 12-244) (filed by former Kentucky candidate for U.S. Senate); Koerber v. 

FEC (E.D.N.C. Civ No. 08-39) (filed by North Carolina resident). HLF, by contrast, resides in 

Virginia and not in Iowa, and so it cannot reasonably claim that any convenience attaches to 

litigating in this District. 

CONCLUSION 

Venue is not properly laid in this District. Under Eighth Circuit precedent, the case must 

be dismissed or transferred to federal district court in the District of Columbia or in the Eastern 

District of Virginia.

 Respectfully submitted, 

Anthony Herman 

General Counsel 

 

David Kolker 

Associate General Counsel 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Kevin P. Hancock 

Steve Hajjar 

Kevin P. Hancock 

 Attorneys 

 khancock@fec.gov 

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COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

 Washington, DC 20463 

August 7, 2012 (202) 694-1650 

CERTIFICATE OF SERVICE

 I hereby certify that on August 7, 2012, the foregoing Reply in Support of Defendant’s 

Motion to Transfer Venue was filed electronically with the Clerk of Court through the Court’s 

ECF system, which will send notification of this filing to the following recipients:

Matt Dummermuth 

WHITAKER HAGENOW & GUSTOFF, LLP 

305 Second Avenue SE, Suite 202 

Cedar Rapids, IA 52401 

And 

Jason Torchinsky 

Shawn Sheehy 

Lisa Dixon 

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

/s/ Kevin P. Hancock 

Kevin P. Hancock 

Case 4:12-cv-00339-JAJ-TJS Document 18 Filed 08/07/12 Page 4 of 4