United States District Court, W.D. Washington, Seattle
L. ROBART United States District Judge.
the court is Defendant Jeffrey P. Pomerantz's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3)
for improper venue and Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. (Mot. (Dkt. # 9).) In
the alternative, Mr. Pomerantz moves to transfer venue to the
United States District Court for the District of Columbia
pursuant to 28 U.S.C. § 1404(a). (Id.)
Plaintiff United States of America (“the
Government”) opposes Mr. Pomerantz's motion. (Resp.
(Dkt. # 11).) Mr. Pomerantz also provides a declaration,
which the court considers when addressing the issues relating
to venue. (Pomerantz Decl. (Dkt. # 13-1).) The court has
considered the parties' submissions, the relevant
portions of the record, and the applicable law. Considering
itself fully advised,  the court DENIES the motion to transfer
and GRANTS the motion to dismiss for failure to state a claim
with leave to amend.
13, 2016, the Government filed this suit to reduce to
judgment civil penalties assessed against Mr. Pomerantz for
his alleged failure to disclose foreign bank accounts in his
2007 through 2009 annual taxes. (Compl. (Dkt. # 1) at 2.)
When the Government filed its complaint, the alleged civil
penalties and interest totaled $860, 300.35. (Id.)
Mr. Pomerantz is a dual citizen of the United States and
Canada who resides in Canada (id.), and he was
allegedly required to file certain tax forms because of his
interests in foreign bank accounts (id. ¶¶
22, 36, 44). Mr. Pomerantz, who is proceeding pro
se, moves to dismiss this case for improper venue under
Federal Rule of Civil Procedure 12(b)(3) and for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6). (See Mot.) Alternatively, Mr.
Pomerantz seeks to transfer this action to the District of
Pomerantz moves to dismiss this case for improper venue
pursuant to Federal Rule of Civil Procedure 12(b)(3).
(Id. at 1.) Dismissal for improper venue is only
proper when venue is “wrong” or
“improper.” Fed.R.Civ.P. 12(b)(3); Atl.
Marine Constr. Co. v. U.S. Dist. Court, ___ U.S. ___,
134 S.Ct. 568, 577 (2013). The federal venue statute provides
that “[a] defendant not resident in the United States
may be sued in any judicial district.” 28 U.S.C. §
1391(c)(3); see also Brunette Mach. Works, Ltd v. Kockum
Indus., Inc., 406 U.S. 706, 714 (1972) (affirming that
the provision in Section 1391 governing venue over a foreign
defendant “is properly regarded not as a venue
restriction at all, but rather as a declaration of the
long-established rule that suits against aliens are wholly
outside the operation of all the federal venue laws, general
and special”). Mr. Pomerantz concedes that he is not a
resident of the United States. (Pomerantz Decl. ¶ 1.)
Therefore, venue is proper in any judicial district,
including the Western District of Washington, and the court
denies the motion to dismiss for improper venue.
alternative, Mr. Pomerantz moves to transfer venue to the
United States District Court for the District of Columbia
under 28 U.S.C. § 1404(a), chiefly because his counsel
of choice is admitted to practice before that court.
(See Mot. at 8.) Section 1404 grants judges
discretion to transfer a case to another district, even
though venue is proper in the current forum. See Jones v.
GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir.
2000). The purposes of Section 1404(a) are to prevent wasted
“time, energy, and money and to protect litigants,
witnesses, and the public against unnecessary inconvenience
and expense.” Van Dusen v. Barrack, 376 U.S.
612, 616 (1964).
court must “adjudicate motions for transfer [of venue]
according to an individualized, case-by-case consideration of
convenience and fairness.” Jones, 211 F.3d at
498. As the movant, Mr. Pomerantz bears the burden of showing
transfer is appropriate. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 255-56 (1981). In determining
whether to transfer venue pursuant to Section 1404(a), the
Ninth Circuit articulated several factors that the court
should consider: “(1) the location where the relevant
agreements were negotiated and executed, (2) the district
that is most familiar with the governing law, (3) the
plaintiff's choice of forum, (4) the respective
parties' contacts with the forum, (5) the contacts
relating to the plaintiff's cause of action in the chosen
forum, (6) the differences in the costs of litigation in the
two forums, (7) the availability of compulsory process to
compel attendance of unwilling non-party witnesses, and (8)
the ease of access to sources of proof.”
Jones, 211 F.3d at 498-99.
Factors Related to Location
first factor-the location where the underlying agreement was
negotiated or concluded-is neutral because there are no
agreements between the parties. (See generally
Compl.) The second factor-the district most familiar with the
governing law-is also neutral. Neither party argues that
federal courts in Washington or the District of Columbia have
superior familiarity with the federal law, and federal
district // courts are presumed to be equally capable of
applying federal law. See Cargill Inc. v. Prudential Ins.
Co. of Am., 920 F.Supp. 144, 148 (D. Colo. 1996).
fifth factor-the contacts between the Government's claims
and the chosen forum-is also neutral. See Jones, 211
F.3d at 498. The acts or omissions that allegedly give rise
to the claim took place when Mr. Pomerantz failed to file the
contested tax forms from his residence in Canada. (Resp. at
7.) Neither party asserts any relationship between the cause
of action and the Western District of Washington or the
District of Columbia. (See generally Mot.; Resp.)
Factors Related to the Parties
third factor-the plaintiff's choice of forum-favors
denying the motion to transfer. As the plaintiff in this
action, the Government's choice of forum generally
receives deference under Section 1404(a). Decker Coal Co.
v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.
1986). The court balances this deference against the extent
of the plaintiff's and defendant's contacts with the
forum, “including those relating to his cause of
action.” See Pac. Car & Foundry Co. v.
Pence, 403 F.2d 949, 954 (9th Cir. 1968.) “If the
operative facts have not occurred within the forum of
original selection and that forum has no particular interest
in the parties or the subject matter, the plaintiff's
choice is only entitled to minimal consideration.”
Id. None of the operative facts occurred in the
Western District of Washington, and this forum does not have
any particular interest in the parties or the subject matter.
(See generally Compl.) Neither the assessment of the
FBAR penalties nor the hearings related to it occurred in
Washington. (See id.; Resp. at 7.) Thus, this factor
weighs only slightly against transfer of venue.
the fourth factor-the parties' contacts with the
forum-supports denying the motion to transfer. The Government
asserts that Mr. Pomerantz has had frequent contact with the
Western District of Washington (see Resp. at 7),
whereas Mr. Pomerantz contends that he does not
“regularly or frequently cross into th[at] district,
” only for short visits “every 2-3 months”
(Pomerantz Decl. ¶ 9). Mr. Pomerantz does not identify
any personal contacts with the District of Columbia, but he
notes that his counsel of choice is a member of the District
of Columbia bar. (Mot. at 4; see also Pomerantz
Decl. ¶ 10 (stating that Mr. Pomerantz “cannot
afford counsel and ha[s] no access to counsel licensed to
practice before this court”).) On balance, the court
concludes that this factor weighs against transfer because
the relevant contacts under Jones are the contacts
between the parties, the witnesses, and the potential fora,
not the parties' representatives. See 28 U.S.C.
§ 1404 (listing interests to be considered as those of
“parties and witnesses”).