14-1238 Blakely v. Lew



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 8 th** **day of April, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **Circuit Judges ,**  8 **GREGORY H. WOODS,** ***** 9 **District Judge**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **JOHN KEITH BLAKELY, RHONDA L.** 13 **BLAKELY, THE ESTATE OF JOHN E. LONG,** 14 **THE ESTATE OF VIRGINIA E. LONG,** 15 **Plaintiffs-Appellants ,**  16 17 **-v.- 14-1238** 18 19 **JACOB E. LEW, Secretary of the U.S.** 20 **Department of the Treasury, in his** 21 **official capacity, JOHN KOSKINEN,** 22

*Judge Gregory H. Woods, of the United States District Court for the Southern District of New York, sitting by designation.

1**Commissioner of the Internal Revenue** 1 **Service, in his official capacity,** 2 **Defendants-Appellees**

**.** ****** 3
- - - - - - - - - - - - - - - - - - - -X 4 5 **FOR APPELLANT:** JEFFREY M. BLUM, New York, New 6 York. 7 8 **FOR APPELLEES:** BENJAMIN H. TORRANCE (with 9 Christine Irvin Phillips, on the 10 brief ), forPreet Bharara, 11 U.S. Attorney for the Southern 12 District of New York, New York, 13 New York. 14 15 Appeal from a judgment of the United States District 16 Court for the Southern District of New York (Furman, J. ). 17 18 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 19 **AND DECREED**that the judgment of the district court be 20
**AFFIRMED**

. 21 22 John Keith Blakely, Rhonda L. Blakely, the estate of 23 John E. Long, and the estate of Virginia E. Long appeal from 24 the judgment of the United States District Court for the 25 Southern District of New York (Furman, J. ), granting the 26 government defendants’ motion to dismiss for improper venue 27 pursuant to Federal Rule of Civil Procedure 12(b)(3). We 28 assume the parties’ familiarity with the underlying facts, 29 the procedural history, and the issues presented for review. 30 31 This appeal is a stage in appellants’ extended 32 litigation to recoup property they forfeited to the 33 government in a consent judgment that stemmed from a 34 criminal conviction. Appellants brought this suit in the 35 Southern District of New York after multiple adverse rulings 36 in the Eastern District of Michigan regarding their right to 37 recover their forfeited property. See, e.g. , Blakely v. 38 United States , 276 F.3d 853 (6th Cir. 2002); United States 39 v. 6185 Brandywine Drive , 66 F. App’x 617 (6th Cir. 2003); 40 United States v. 6185 Brandywine Drive , No. 92-40157, 2007 41 WL 2049887 (E.D. Mich. July 17, 2007). The instant action 42 involves the same underlying claims and issue as the 43

**The Clerk of Court is directed to amend the case caption as above.

2previous lawsuits, turns on the same facts, and ultimately 1 requests the same relief: recoupment from the Internal 2 Revenue Service (“IRS”) of the value of appellants’ 3 forfeited property. However, the only issue in this appeal 4 is whether venue is proper in the Southern District of New 5 York. We conclude that it is not. 6 7 Because the district court held no factual hearings 8 with respect to venue, this Court considers de novo whether 9 appellants set out a prima faciecase for venue. Gulf Ins. 10 Co. v. Glasbrenner , 417 F.3d 353, 355 (2d Cir. 2005). 11 12 The relevant venue statute provides: 13 14 A civil action in which a defendant is an 15 officer or employee of the United States 16 . . . acting in his official capacity . . . 17 may . . . be brought in any judicial district 18 in which . . . (B) a substantial part of the 19 events or omissions giving rise to the claim 20 occurred . . . . 21 22 28 U.S.C. § 1391(e)(1). To ascertain whether venue is 23 proper under 28 U.S.C. § 1391(b)(2), “a court should 24 identify . . . the acts or omissions that the plaintiff 25 alleges give rise to [the] claims,” and then “determine 26 whether a substantial part of those acts or omissions 27 occurred in the district where suit was filed.” Daniel v. 28 Am. Bd. of Emergency Med. , 428 F.3d 408, 432 (2d Cir. 2005). 29 Because the proffered grounds for venue in this case are so 30 insubstantial, we need not decide whether the venue 31 provision before us today, which falls under the Mandamus 32 and Venue Act, 28 U.S.C. § 1391(e), should be analyzed 33 differently from the general venue provision, 28 U.S.C. 34 § 1391(b), which was before the Daniel and Gulf Insurance 35 Co. Courts. In performing this analysis, courts must “take 36 seriously the adjective ‘substantial’” and “construe the 37 venue statute strictly.” Gulf Ins. Co. , 417 F.3d at 357. 38 “That means for venue to be proper, significant events or 39 omissions material to the plaintiff’s claim must have 40 occurred in the district in question.” Id. 41 42 Appellants proffer two grounds for venue in the 43 Southern District of New York: when the IRS refused to 44 consider appellants’ forfeited property as a tax payment, it 45 communicated that refusal to appellants’ lawyer while he was 46 located in the Southern District; and their lawyer prepared 47

3their tax refund claims from his office in the Southern 1 District. These de minimis acts within the Southern 2 District cannot satisfy this Court’s “substantiality” 3 requirement for venue. SeeDaniel , 428 F.3d at 432-33. 4 Simply put, such acts are not “ significant events . . . 5 material to the plaintiff’s claim,” and a contrary finding 6 would not “construe the venue statute strictly.” Gulf Ins. 7 Co. , 417 F.3d at 357. The significant events that are 8 material to this controversy include the execution of the 9 consent judgment, appellants’ forfeiture of their property, 10 and the government’s refusal to credit the forfeited 11 property as a tax payment. None took place within the 12 Southern District of New York. Therefore, venue is 13 improper. 14 15 Appellants’ theory would locate venue wherever 16 plaintiffs retain a lawyer, which would make meaningless the 17 obligation to “take seriously the adjective ‘substantial.’” 18 Id. This Court has held, in the context of 28 U.S.C. 19 § 1391(b), that a plaintiff’s “employ[ment of] a New York 20 law firm,” along with other connections to New York, 21 “fail[ed] to establish that a substantial part of the events 22 or omissions giving rise to the claim took place in New 23 York.” Friedman v. Revenue Mgmt. of N.Y., Inc. , 38 F.3d 24 668, 672 (2d Cir. 1994) (internal quotation marks omitted). 25 26 There is no merit in appellants’ claim that the 27 district court abused discretion when it refused to transfer 28 their case to the District of Columbia. A district court is 29 required to transfer a case only “if it be in the interest 30 of justice.” 28 U.S.C. § 1406(a). The district court’s 31 decision whether to dismiss or transfer a case “lies within 32 the sound discretion of the district court.” Minnette v. 33 Time Warner , 997 F.2d 1023, 1026 (2d Cir. 1993). Given 34 appellants’ unsuccessful history of litigation in the 35 Eastern District of Michigan, the district court did not 36 abuse its discretion by dismissing the case after concluding 37 that appellants’ attempt to bring their case in the Southern 38 District of New York constituted impermissible forum 39 shopping. SeeSpar, Inc. v. Info. Res., Inc. , 956 F.2d 392, 40 395 (2d Cir. 1992) (affirming refusal to transfer venue when 41 “plaintiffs’ attempt to transfer the case was, in some 42 respect, forum shopping”). 43 44 Finally, the district court did not abuse discretion in 45 denying appellants’ motion for reconsideration. Under the 46 district court’s local rule providing for such a motion, 47

4“[t]o be entitled to reargument, a party must demonstrate 1 that the Court overlooked controlling decisions or factual 2 matters that were put before it on the underlying motion.” 3 Eisemann v. Greene , 204 F.3d 393, 395 n.2 (2d Cir. 2000) 4 (internal quotation marks omitted). Appellants’ motion 5 appears to rely solely on arguments previously rejected by 6 the district court. 7 8 For the foregoing reasons, and finding no merit in 9 appellants’ other arguments, we hereby **AFFIRM** the judgment 10 of the district court. The motion to take judicial notice 11 of an article from the New York Times is **DENIED**

. 12 13 FOR THE COURT: 14 CATHERINE O’HAGAN WOLFE, CLERK 15 16 17 18

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