14-1238

Blakely v. Lew

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 8th 4 day of April, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 Circuit Judges,

GREGORY H. WOODS,* 9

10 District Judge.

11

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13 JOHN KEITH BLAKELY, RHONDA L.

14 BLAKELY, THE ESTATE OF JOHN E. LONG,

15 THE ESTATE OF VIRGINIA E. LONG, 

16 Plaintiffs-Appellants,

17

18 -v.- 14-1238

19

20 JACOB E. LEW, Secretary of the U.S.

21 Department of the Treasury, in his

22 official capacity, JOHN KOSKINEN,

* Judge Gregory H. Woods, of the United States District

Court for the Southern District of New York, sitting by

designation.

1
1 Commissioner of the Internal Revenue

2 Service, in his official capacity, 

Defendants-Appellees.** 3

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5

6 FOR APPELLANT: JEFFREY M. BLUM, New York, New

7 York.

8

9 FOR APPELLEES: BENJAMIN H. TORRANCE (with

10 Christine Irvin Phillips, on the

11 brief), for Preet Bharara,

12 U.S. Attorney for the Southern

13 District of New York, New York,

14 New York.

15

16 Appeal from a judgment of the United States District

17 Court for the Southern District of New York (Furman, J.).

18

19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20 AND DECREED that the judgment of the district court be

21 AFFIRMED. 

22

23 John Keith Blakely, Rhonda L. Blakely, the estate of

24 John E. Long, and the estate of Virginia E. Long appeal from

25 the judgment of the United States District Court for the

26 Southern District of New York (Furman, J.), granting the

27 government defendants’ motion to dismiss for improper venue

28 pursuant to Federal Rule of Civil Procedure 12(b)(3). We

29 assume the parties’ familiarity with the underlying facts,

30 the procedural history, and the issues presented for review. 

31

32 This appeal is a stage in appellants’ extended

33 litigation to recoup property they forfeited to the

34 government in a consent judgment that stemmed from a

35 criminal conviction. Appellants brought this suit in the

36 Southern District of New York after multiple adverse rulings

37 in the Eastern District of Michigan regarding their right to

38 recover their forfeited property. See, e.g., Blakely v.

39 United States, 276 F.3d 853 (6th Cir. 2002); United States

40 v. 6185 Brandywine Drive, 66 F. App’x 617 (6th Cir. 2003);

41 United States v. 6185 Brandywine Drive, No. 92-40157, 2007

42 WL 2049887 (E.D. Mich. July 17, 2007). The instant action

43 involves the same underlying claims and issue as the

** The Clerk of Court is directed to amend the case

caption as above.

2
1 previous lawsuits, turns on the same facts, and ultimately

2 requests the same relief: recoupment from the Internal

3 Revenue Service (“IRS”) of the value of appellants’

4 forfeited property. However, the only issue in this appeal

5 is whether venue is proper in the Southern District of New

6 York. We conclude that it is not.

7

8 Because the district court held no factual hearings

9 with respect to venue, this Court considers de novo whether

10 appellants set out a prima facie case for venue. Gulf Ins.

11 Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). 

12

13 The relevant venue statute provides:

14

15 A civil action in which a defendant is an

16 officer or employee of the United States

17 . . . acting in his official capacity . . .

18 may . . . be brought in any judicial district

19 in which . . . (B) a substantial part of the

20 events or omissions giving rise to the claim

21 occurred . . . .

22

23 28 U.S.C. § 1391(e)(1). To ascertain whether venue is

24 proper under 28 U.S.C. § 1391(b)(2), “a court should

25 identify . . . the acts or omissions that the plaintiff

26 alleges give rise to [the] claims,” and then “determine

27 whether a substantial part of those acts or omissions

28 occurred in the district where suit was filed.” Daniel v.

29 Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005). 

30 Because the proffered grounds for venue in this case are so

31 insubstantial, we need not decide whether the venue

32 provision before us today, which falls under the Mandamus

33 and Venue Act, 28 U.S.C. § 1391(e), should be analyzed

34 differently from the general venue provision, 28 U.S.C.

35 § 1391(b), which was before the Daniel and Gulf Insurance

36 Co. Courts. In performing this analysis, courts must “take

37 seriously the adjective ‘substantial’” and “construe the

38 venue statute strictly.” Gulf Ins. Co., 417 F.3d at 357. 

39 “That means for venue to be proper, significant events or

40 omissions material to the plaintiff’s claim must have

41 occurred in the district in question.” Id.

42

43 Appellants proffer two grounds for venue in the

44 Southern District of New York: when the IRS refused to

45 consider appellants’ forfeited property as a tax payment, it

46 communicated that refusal to appellants’ lawyer while he was

47 located in the Southern District; and their lawyer prepared

3
1 their tax refund claims from his office in the Southern

2 District. These de minimis acts within the Southern

3 District cannot satisfy this Court’s “substantiality”

4 requirement for venue. See Daniel, 428 F.3d at 432-33. 

5 Simply put, such acts are not “significant events . . .

6 material to the plaintiff’s claim,” and a contrary finding

7 would not “construe the venue statute strictly.” Gulf Ins.

8 Co., 417 F.3d at 357. The significant events that are

9 material to this controversy include the execution of the

10 consent judgment, appellants’ forfeiture of their property,

11 and the government’s refusal to credit the forfeited

12 property as a tax payment. None took place within the

13 Southern District of New York. Therefore, venue is

14 improper.

15

16 Appellants’ theory would locate venue wherever

17 plaintiffs retain a lawyer, which would make meaningless the

18 obligation to “take seriously the adjective ‘substantial.’” 

19 Id. This Court has held, in the context of 28 U.S.C.

20 § 1391(b), that a plaintiff’s “employ[ment of] a New York

21 law firm,” along with other connections to New York,

22 “fail[ed] to establish that a substantial part of the events

23 or omissions giving rise to the claim took place in New

24 York.” Friedman v. Revenue Mgmt. of N.Y., Inc., 38 F.3d

25 668, 672 (2d Cir. 1994) (internal quotation marks omitted). 

26

27 There is no merit in appellants’ claim that the

28 district court abused discretion when it refused to transfer

29 their case to the District of Columbia. A district court is

30 required to transfer a case only “if it be in the interest

31 of justice.” 28 U.S.C. § 1406(a). The district court’s

32 decision whether to dismiss or transfer a case “lies within

33 the sound discretion of the district court.” Minnette v.

34 Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). Given

35 appellants’ unsuccessful history of litigation in the

36 Eastern District of Michigan, the district court did not

37 abuse its discretion by dismissing the case after concluding

38 that appellants’ attempt to bring their case in the Southern

39 District of New York constituted impermissible forum

40 shopping. See Spar, Inc. v. Info. Res., Inc., 956 F.2d 392,

41 395 (2d Cir. 1992) (affirming refusal to transfer venue when

42 “plaintiffs’ attempt to transfer the case was, in some

43 respect, forum shopping”). 

44

45 Finally, the district court did not abuse discretion in

46 denying appellants’ motion for reconsideration. Under the

47 district court’s local rule providing for such a motion,

4
1 “[t]o be entitled to reargument, a party must demonstrate

2 that the Court overlooked controlling decisions or factual

3 matters that were put before it on the underlying motion.” 

4 Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000)

5 (internal quotation marks omitted). Appellants’ motion

6 appears to rely solely on arguments previously rejected by

7 the district court.

8

9 For the foregoing reasons, and finding no merit in

10 appellants’ other arguments, we hereby AFFIRM the judgment

11 of the district court. The motion to take judicial notice

12 of an article from the New York Times is DENIED.

13

14 FOR THE COURT:

15 CATHERINE O’HAGAN WOLFE, CLERK

16

17

18

5