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United States v. Pomerantz

United States District Court, W.D. Washington, Seattle

June 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY P. POMERANTZ, Defendant.

          ORDER

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before 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, [1] the court DENIES the motion to transfer and GRANTS the motion to dismiss for failure to state a claim with leave to amend.

         II. BACKGROUND

         On May 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).[2] (See Mot.) Alternatively, Mr. Pomerantz seeks to transfer this action to the District of Columbia. (Id.)

         III. ANALYSIS

         A. Venue

         Mr. 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.

         In the 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).

         1. Legal Standard

         The 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.

         2. Factors Related to Location

         The 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).

         The 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.)

         3. Factors Related to the Parties

         The 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.

         Likewise, 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”).

         4. Factors ...


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