The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
bring this action pursuant to 42 U.S.C. § 1983, the equal protection clause of the United States Constitution, the Social Security Act, the New York Social Services Law and the New York City Code of Rules and Regulations, challenging defendants' alleged failure to provide lawful emergency housing to homeless families with children. Defendants have moved to dismiss this action due to improper venue. In the alternative, defendants move to transfer this action to the Southern District of New York, or for this Court to abstain from exercising its jurisdiction due to the pending state court proceeding in McCain v. Koch, No. 41023/83.
For the reasons set forth below, defendants' motion to transfer this action to the Southern District of New York is granted pursuant to 28 U.S.C. § 1406(a).
Plaintiffs are five homeless, indigent mothers with children who are allegedly "at immediate risk of being denied emergencyy housing" by the defendants and seek certification as a "class of homeless families with children who have been, are being, or will be denied lawful emergency housing by the defendants." In addition, plaintiffs seek a declaration that defendants' failure to provide plaintiffs with such housing violates the laws cited above, an order preliminarily and permanently requiring defendants to provide plaintiffs with such housing, as well as costs and attorneys' fees.
Defendant Koch is sued in his official capacity as the Mayor of the City of New York. His official residence is City Hall, which is located in the Southern District of New York. Defendant Vernez is sued in his official capacity as Acting Commissioner of New York City Human Resources Administratioon ("HRA"), and he maintains an official residence at 250 Church Street in the Southern District of New York. Defendant Perales, sued as the Commissioner of the New York State Department of Social Services ("DSS"), has official residences in Albany, located in the Northern District of New York, and at Two World Trade Center, in the Southern District of New York.
This action was commenced with the simultaneous filing of a complaint and order to show cause for class certification and preliminary injunctive relief on September 24, 1984. After being advised by counsel for defendants of their challenge to venue and jurisdiction, this Court permitted the parties to brief and argue these issues while the original order to show cause was held in abeyance.
At the time this complaint was filed, the named individual plaintiffs were being sheltered in temporary emergency housing provided by the City defendants. However, it is the process by which these plaintiffs were required to obtain housing, as well as alleged failures of that process, which caused plaintiffs to file this action.
In essence, the system by which homeless families obtain emergency shelter operates as follows: The HRA operates some forty income maintenance centers (IMCs) in New York City, at least nineteen of which are located in the Eastern District. Affidavit of Thomas H. Styron, dated October 2, 1984 ("Styron Aff.").
It is undisputed that when a homeless family first seeks to obtain emergency housing, the family first goes to an IMC in the home borough. The IMC refers the applicant to emergency shelter or sends the family to HRA's emergency assistance unit ("EAU") in Manhattan, which is also the only office connected with sheltering the homeless that is open after 5:00 P.M.
From the EAU, applicants are referred to hotels or "barracks-style" emergency housing. Plaintiffs state that twenty of the fifty hotels to which homeless families are referred by the EAU are located within the Eastern District. The purported liability of defendant DSS arises from the fact that DSS supervises HRA's operation of the IMCs, and regulates, inspects and funds the shelters to which homeless families are referred. In addition to operating the IMCs, plaintiffs state that HRA also operates or funds the shelters mentioned above. Styron Aff. PP4,6.
The five named plaintiffs and their children allege that they became homeless for a variety of reasons ranging from eviction to domestic violence. Three of the plaintiffs submitted affidavits detailing their dealings with the IMCs and EAU in support of their order to show cause for injunctive relief and class certification, which affidavits are summarized here. Daisy Cannady, the only named plaintiff who last resided in the Eastern District before becoming homeless, alleges that after receiving a few nights of emergency placement, she was not given a further placement by the IMC nor referred to the EAU for further assistance. Cannady
then went on her own to the EAU where she and her family were referred to a barracks-style shelter at Roberto Clemente State Park ("Clemente") in the Bronx. Because plaintiff and her husband felt this shelter to be unsuitable due to their daughter's respiratory problems, they chose to stay overnight at the EAU office.
On September 20, the IMC allegedly directed Cannady not to return to the EAU due to the unavailability of placements. However, Cannady again returned to the EAU and stayed there overnight with her family. On Septembber 21, plaintiff was turned away from the EAU because she lacked a referral from the IMC. After an attempt to secure a referral slip at the Clemente shelter, plaintiff returned to the EAU and was eventually referred to a hotel in Queens, where she remained at the time this action was instituted.
Plaintiff Planell last resided in the Bronx and was allegedly denied shelter at Clemente on September 14. She was later referred by the EAU to a Queens hotel placement for that night, but spent the following night in the EAU office because no placements were available. After spending the next five nights in a Bronx hotel, Plsanell was on September 21 referred by her IMC to a barracks style shelter in Brooklyn, which turned her away, allegedly due to her pregnancy. She then returned to the EAU and was placed in a Manhattan shelter until September 28.
Plaintiff Booker, who last resided in Manhattan, was referred by her local welfare office to a barracks-style shelter in the Bronx on September 21. When she was allegedly turned away at the shelter, she and her three children were taken to the EAU. After spending most of the night there, they were sent to a Queens hotel. Booker spent the next night at the EAU.
Plaintiffs Roman and Rodriguez have not submitted affidavits regarding their interaction with the IMCs and EAU. The complaint, however, alleges that Roman last lived in New York County. On September 19, the EAU allegedly referred her and her three children to a Bronx shelter. The family was robbed of food and clothing on its way to the shelter and was allegedly turned away at the shelter due to lack of space. The family returned to the EAU and eventually received a placement at 3:00 A.M.
Plaintiff Rodriguez allegedly had to split up her family to find shelter for herself and her three children after she became homeless in August 1984. Although the complaint alleges that the Rodriguez family spent some time on the streets and living with friends in overcrowded conditions since that time, there are no allegations as to the present whereabouts of the family.
I note preliminarily that it is more than circumstance which brings plaintiffs to the venue of the Eastern District of New York. The plaintiffs candidly admit that they are in this Court because they believed they would obtain a ruling here that would be favorable to them. When they filed this action, plaintiffs informed the Clerk of this Court that this case should be assigned pursuant to Rule 3 of the Rules for the Division of Business among District Judges for the Eastern District as a case "related" to Koster v. Perales, 82 Civ. 2892 (ILG). That rule mandates assignment of a case to the judge to whom the first case filed was assigned. A case is "related" under Rule 3(a) "when, because of similarity of facts and legal issues or because the cases arise from the same transactions or events, a substantial saving of the time of the whole court is likely to result if the cases are assigned to the same judge."
In Koster, plaintiffs purport to represent two classes of homeless families who have allegedly either been denied emergencyy shelter or furnished with inadequate emergency shelter in Nassau County. On November 9, 1983, I denied a motion to dismiss made by the two county defendants in that case. Koster v. Webb, 598 F. Supp. 1134, No. 82-2892 (E.D.N.Y. 1983).
While it is true that the legal issue of the right of the homeless to emergency housing is presented in both cases, the facts and parties of Koster and Cannady differ. Moreover, however related these cases may be, the local related case rule cannot be read to lay venue where it does not exist.
The specific venue provisions implicated in this proceeding are 28 U.S.C. § 1391(b) and § 1392(a), which provide:
(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.
§ 1392. Defendants or property in different districts in the same State
(a) Any civil action, not of a local nature, against defendants residing in different districts in the same State, may be brought in any of such districts.
Plaintiffs contend that venue is proper under either § 1391(b) or § 1392(a). I will address each of these claims separately, considering first ...