NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2081

___________

ROSS A. FIORANI, STATES ATTORNEY GENERALS IN: CA,

OH, PA, MD, WVA, DE, NJ, NY TN NC, SC AND FL,

v.

CHRYSLER GROUP; DODGE CORP; TD FINANCIAL

GROUP, LLC; ALLY FINANCIAL SERVICES

ROSS A. FIORANI, 

 Appellant 

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:12-cv-00416)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 3, 2013

Before: SLOVITER, GREENAWAY, JR., and BARRY, Circuit Judges

(Opinion filed: January 17, 2013)

___________

OPINION

___________

PER CURIAM
2

Ross A. Fiorani, proceeding pro se and in forma pauperis, appeals from an order 

of the United States District Court for the Middle District of Pennsylvania sua sponte

dismissing his complaint with prejudice for lack of venue as well as for being frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B)(1). For the following reasons, we will vacate the 

District Court’s dismissal order and remand for further proceedings.

I.

Because we write primarily for the parties, we need only recite the facts necessary 

for our discussion. In April 2010, Fiorani, a frequent litigator in federal court, filed a pro 

se complaint against the Chrysler-Dodge Corporation, alleging various violations of the 

Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-68, 

along with other federal and state law violations. (Fiorani v. Chrysler-Dodge Corp., 

M.D. Pa. Civ. No. 1:10-cv-00880.) On August 9, 2010, a Magistrate Judge 

recommended that Fiorani’s complaint be transferred to the United States District Court 

for the Eastern District of Virginia because a substantial number of the events giving rise 

to his claims had occurred within that district. The Magistrate Judge also recommended 

that Fiorani’s motion to proceed in forma pauperis be held in abeyance to be reviewed by 

the Eastern District of Virginia. On August 30, 2010, the District Court adopted the 

Magistrate Judge’s recommendation and ordered that Fiorani’s case be transferred to the 

Eastern District of Virginia.1

 

1

The United States District Court for the Eastern District of Virginia subsequently denied 

Fiorani’s motion to proceed in forma pauperis and dismissed his complaint pursuant to 28 
3

On March 6, 2012, Fiorani filed a pro se complaint against the Chrysler Group, 

Dodge Corporation, TD Financial Group, and Ally Financial Services, alleging violations 

of RICO as well as various other federal and state laws. Fiorani’s complaint alleged that 

Appellees were participating in a conspiracy to force all potential purchasers of ChryslerDodge vehicles to obtain financing through the defendant financial institutions. Fiorani 

further alleged that he was prevented from purchasing a Dodge Charger R/T despite a 

contract he allegedly had entered into with Chrysler-Dodge and Chrysler-Financial which 

authorized prearranged and pre-approved credit for the purchase. On March 16, 2012, a 

Magistrate Judge recommended that Fiorani’s complaint be dismissed with prejudice. On 

April 5, 2012, the District Court adopted the Magistrate Judge’s recommendation and 

dismissed Fiorani’s complaint with prejudice on the grounds that (1) the Middle District 

of Pennsylvania was an improper venue and (2) it was frivolous because the District 

Court had previously advised Fiorani that the Middle District of Pennsylvania was not a 

proper venue.

Fiorani timely filed this appeal. The Clerk notified him that his appeal would be 

submitted to the Court for possible summary action under 3d Cir. L.A.R. 27.4 and I.O.P. 

10.6. However, the Clerk later issued a briefing schedule and directed the parties to brief

whether the District Court erred in sua sponte dismissing Fiorani’s complaint with 

 

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. (Fiorani v. Chrysler-Dodge Corp., 

E.D. Va. Civ. No. 1:10-cv-00989, Docket #15.)
4

prejudice because of improper venue, and whether improper venue is a proper ground for 

finding a complaint frivolous under 28 U.S.C. § 1915(e).

II.

We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District 

Court’s dismissal of the complaint as frivolous is for abuse of discretion, see Denton v. 

Hernandez, 504 U.S. 25, 33-34 (1992), but we exercise plenary review over its 

application of law, see Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). A 

claim is frivolous if “the claim is of little or no weight, value or importance, not worthy 

of serious consideration, or trivial.” Deutsch, 67 F.3d at 1089. Improper sua sponte 

dismissals for venue are reviewed for harmless error. See Buchanan v. Manley, 145 F.3d 

386, 388 (D.C. Cir. 1998).

III.

Under RICO, venue lies “in the district court . . . for any district in which [any 

defendant] resides, is found, has an agent, or transacts his affairs.” 18 U.S.C. § 1965(a). 

However, venue over RICO claims is controlled by both 18 U.S.C. § 1965(a) and the 

general venue provisions contained in 28 U.S.C. § 1391. In a civil action, venue is 

proper:

only in (1) a judicial district where any defendant resides, if all defendants 

reside in the same state, (2) a judicial district in which a substantial part of 

the events or omissions giving rise to the claim occurred, or a substantial 

part of property that is the subject of the action is situated, or (3) a judicial 

district in which any defendant may be found, if there is no district in which 

the action may otherwise be brought.
5

28 U.S.C. § 1391(b).

Fiorani’s complaint neither sets forth facts indicating that any defendant is located 

in the Middle District of Pennsylvania nor alleges that any of the events or omissions 

giving rise to his claims occurred there. As the District Court notes, the only mention 

Fiorani makes of Pennsylvania is to indicate that Mid-Atlantic Regional Dodge, a nondefendant, is located in Malvern, Pennsylvania. However, Malvern’s location in Chester 

County places it within the Eastern District of Pennsylvania.

District courts generally should not dismiss in forma pauperis complaints for 

improper venue. As we have previously explained, 

28 U.S.C. § 1915 contains no express authorization for a dismissal for lack 

of venue. In the absence of any such statutory authority, it is inappropriate 

for the trial court to dispose of the case sua sponte on an objection to the 

complaint which would be waived if not raised by the defendant(s) in a 

timely manner.

Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976); see also Gomez v. USAA Fed. Sav. 

Bank, 171 F.3d 794, 796 (2d Cir. 1999) (“A district court may not dismiss a case sua 

sponte for improper venue absent extraordinary circumstances.”). Here, the District 

Court raised the issue of venue sua sponte without expressly considering whether the 

interests of justice weigh in favor of transferring Fiorani’s complaint instead of 

dismissing it. See 28 U.S.C. § 1406(a). The District Court erred in doing so.
6

Under the circumstances presented here, the District Court’s error was not 

harmless. See Buchanan, 145 F.3d at 388.2 Fiorani’s complaint makes it abundantly 

clear that there is no conceivable basis for venue in the Middle District of Pennsylvania 

because none of the defendants is alleged to reside there and because his allegations are 

not related in any way to that District. See 28 U.S.C. § 1391(b); 18 U.S.C. § 1965(a). 

While some of Fiorani’s claims are duplicitous of claims contained in his prior complaint 

that was dismissed by the Eastern District of Virginia, the District Court’s dismissal of 

his complaint with prejudice precludes Fiorani from refiling his new allegations in the 

proper venue. As we have previously noted, dismissal with prejudice is only appropriate 

in limited circumstances not applicable here. Emerson v. Thiel Coll., 296 F.3d 184, 190 

(3d Cir. 2002); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).

IV.

In sum, the District Court erred by sua sponte dismissing with prejudice Fiorani’s 

complaint for improper venue, and such error was not harmless. Accordingly, we will 

vacate the District Court’s dismissal order and remand the matter for further proceedings.

 

2

The Buchanan court affirmed a dismissal for improper venue, concluding that “such 

procedural error is harmless in cases where, as here, the appellant has had an opportunity 

to challenge the district court’s ruling on appeal but has failed to demonstrate that venue 

is proper.” Buchanan, 145 F.3d at 388. However, the district court had dismissed 

Buchanan’s complaint without prejudice. See id. at 387. While Fiorani has challenged 

the District Court’s ruling on appeal, we focus on the fact that, unlike in Buchanan, the 

District Court dismissed his complaint with prejudice, foreclosing him from filing his 

new allegations in the proper venue.