Waytes v. City of Cville ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGIL WAYTES; GEORGE WAYTES,
JR., Executors of the Estate of
George Edward Waytes, Sr.,
Deceased,
Plaintiffs-Appellants,
v. No. 97-2177
CITY OF CHARLOTTESVILLE; KRISTEN
KONRAD; JOHN DICK BOWEN;
CHARLOTTESVILLE POLICE
DEPARTMENT,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-97-122)
Submitted: June 30, 1998
Decided: August 4, 1998
Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Bernice Stafford Turner, Richmond, Virginia, for Appellants. R.
Craig Wood, Kerri Borchardt Taylor, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Charlottesville, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Virgil Waytes and George Waytes, Jr., appeal the district court's
orders dismissing their civil rights complaint for improper venue and
denying their motion for reconsideration. Because venue in the East-
ern District of Virginia was improper and transfer of the matter to the
Western District of Virginia would not have been in the interest of
justice, we affirm.
I
On December 23, 1993, the Plaintiffs filed a wrongful death action
in the Circuit Court of the City of Charlottesville, Virginia. They
alleged that their father, George Waytes, Sr., died in 1991 while in the
custody of the Charlottesville Police Department. On August 16,
1996, the state court dismissed the action without prejudice, the plain-
tiffs having nonsuited the case pursuant to Va. Code Ann. § 8.01-380(Michie 1992).
On February 18, 1997, Virgil and George Waytes, Jr., filed suit in
the United States District Court for the Eastern District of Virginia.
They claimed a violation of their father's civil rights and invoked
jurisdiction pursuant to 42 U.S.C.A. § 1983 (West Supp. 1998), and
42 U.S.C. §§ 1985, 1986 (1994). They did not include a claim of
wrongful death under Virginia law.
The Defendants, the City of Charlottesville and two individuals,
moved pursuant to Fed. R. Civ. P. 12(b)(3) to transfer venue to the
Western District of Virginia. None of the Defendants reside in the
Eastern District of Virginia. Further, the cause of action accrued in
the Western District of Virginia. The Plaintiffs failed to respond to the
motion.
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The district court concluded that the motion was actually one to
dismiss the action for improper venue. Because venue lay in the
Western District of Virginia, the district court dismissed the action.
Subsequently, the court denied the Plaintiffs' motion for reconsidera-
tion, observing that the Plaintiffs had not shown any basis for the
court's exercising its discretion and transferring, rather than dismiss-
ing, the case.
II
Venue in this case lay only in the Western District of Virginia,
where the Defendants reside and the cause of action arose. See 28
U.S.C.A. § 1391(b) (West Supp. 1998). The action therefore was sub-
ject to dismissal upon the filing of a motion pursuant to Fed. R. Civ.
P. 12(b)(3). The district court, confronted with a case laying venue in
the wrong district, is statutorily obligated to dismiss the case unless
transferring the case to a district where the action could have been
brought is in the interest of justice. See 28 U.S.C. § 1406(a) (1994).
We review the dismissal for abuse of discretion. See King v. Russell,
963 F.2d 1301, 1304 (9th Cir. 1992).
The cause of action in this case arose in 1991, and the federal law-
suit was filed in 1997. The applicable two-year statute of limitations
had expired long before this lawsuit was filed in 1997. See Va. Code
Ann. § 8.01-243(A) (Michie 1992); Wilson v. Garcia, 471 U.S. 261,
276-80 (1985) (in § 1983 actions, state statute of limitations for per-
sonal injury applies); McCausland v. Mason County Bd. of Educ., 649
F.2d 278, 279 (4th Cir. 1991) (state statute of limitations for personal
injury applies equally to actions under §§ 1983, 1985, and 1986). It
was therefore not in the interest of justice to transfer the matter to
another district, where the case was subject to dismissal as time-
barred.*
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*Contrary to Appellants' assertion, the district court was not obligated
to conduct a hearing prior to granting the Rule 12(b)(3) motion. Appel-
lees served a copy of the motion on Appellants' attorney, who failed to
respond to the motion despite being on notice that the motion had been
filed.
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III
Because the district court did not abuse its discretion in dismissing
the action for improper venue or in denying the motion for reconsid-
eration, we affirm. We dispense with oral argument because the facts
and legal contentions are adequately set forth in the materials before
us and argument would not aid the decisional process.
AFFIRMED
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