Tim Day v. City of Galveston , 480 F. App'x 119 ( 2012 )

BLD-164 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1350
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TIM T. DAY,
Appellant
v.
CITY OF GALVESTON; SIMPSON GALLERIES;
GALVESTON POLICE DEPARTMENT
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 12-cv-00047)
District Judge: Honorable Mitchell S. Goldberg
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 19, 2012
Before: SCIRICA, SMITH AND CHAGARES, Circuit Judges
(Opinion filed: May 11, 2012)
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OPINION
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PER CURIAM
Tim T. Day appeals pro se from the order of the District Court dismissing his
complaint sua sponte for improper venue. Although the District Court acted prematurely
in taking that action sua sponte, we conclude that such error was harmless under the
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circumstances presented here. We will affirm on that basis.
I.
Day filed a motion for leave to proceed in forma pauperis (“IFP”) along with a
complaint against the City of Galveston, Texas, the Galveston Police Department, and a
private company with an address in Houston, Texas. Day alleges that defendants violated
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-
1968. His specific allegations are somewhat difficult to follow, but he appears to allege
that defendants conspired to deprive him of the use of property and to cause him financial
injury in order to prevent him from pursuing a Congressional campaign in Texas.
Among the predicate acts he alleges are the revocation of a certificate of occupancy for
an office building and numerous false arrests. He alleges that all of these acts occurred in
Texas.1
By order entered January 11, 2012, the District Court granted Day’s motion for
leave to proceed IFP and sua sponte dismissed his complaint for improper venue under
the venue statutes applicable to civil actions generally, see 28 U.S.C. § 1391(b), and to
civil RICO actions in particular, see 18 U.S.C. § 1965(a). Day appeals, and we have
jurisdiction under 28 U.S.C. § 1291. We notified Day that we would consider this appeal
for summary action and permitted him to file a response, but he has not done so.
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Among other things, Day’s form complaint contains a section asking “Where did the events
giving rise to your claim(s) occur?” Day answered: “2411 B Strand Galveston, Galveston City
Hall, Galveston Islands, TX[.]” (Dist. Ct. Docket No. 3 at 3, ¶ III.A.)
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II.
District courts generally should not dismiss IFP complaints sua sponte for
improper venue. As we explained:
28 U.S.C. § 1915 [the IFP statute] 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. Furthermore, even where a defect in
venue has been properly raised, a question remains whether the case should
be dismissed or transferred to a district in which venue would be proper.
Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976) (footnotes omitted); 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.”). In
this case, the District Court raised the issue of venue sua sponte without giving Day an
opportunity to respond (by amendment or otherwise) and without expressly considering
whether the interests of justice weigh in favor of transferring the matter instead of
dismissing it. See 28 U.S.C. § 1406(a). This was error.
Under the circumstances presented here, however, that error was harmless. See
Buchanan v. Manley, 145 F.3d 386, 388 (D.C. Cir. 1998) (applying harmless error to
improper sua sponte dismissal for lack of venue). We reach this conclusion for two
reasons. First, Day’s complaint makes it abundantly clear that there is no conceivable
basis for venue in the Eastern 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). To the contrary, Day’s few
specific factual allegations concern the conduct of Texas residents and entities in Texas.
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Day was on notice of the District Court’s basis for dismissing his complaint when he
appealed, but he has not filed anything challenging the District Court’s conclusion that
venue was improper or made any attempt to show otherwise. See Buchanan, 145 F.3d at
388 (holding that improper sua sponte dismissal for lack of venue was harmless error
where “the appellant has had an opportunity to challenge the district court’s ruling on
appeal but has failed to demonstrate that venue is proper”). Thus, there is no basis to
question the substance of the District Court’s ruling.
Second, there also is no indication that transferring this matter instead of
dismissing it might be in the interests of justice. Dismissal poses no apparent problem
with the four-year civil RICO statute of limitations. See Rogers v. McDorman, 521 F.3d
381, 387 & n.23 (5th Cir. 2008) (citing Agency Holding Corp. v. Malley-Duff & Assocs.,
Inc., 483 U.S. 143 (1987)); Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 510 n.11 (3d
Cir. 2006) (same). Day alleges that defendants’ conduct occurred between August 2010
and December 2011. Thus, he will have ample time to refile his claims in a proper
venue. And requiring him to do so will not subject him to a second filing fee because the
District Court granted him leave to proceed IFP and did not assess one.
For these reasons, we will affirm the judgment of the District Court.
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