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December 17, 1986

JAMES R. KUPCHO, Plaintiff,

The opinion of the court was delivered by: SPRIZZO



Plaintiff pro se brings this action for damages and injunctive relief alleging that the defendants violated his due process and equal protection rights. *fn1" Plaintiff's allegations of a violation of his constitutional rights arise out of the Internal Revenue Service's ("I.R.S.'s") denial of plaintiff's claim for an exemption from federal withholding taxes. Plaintiff alleges that the defendants Dale Coy, Roger Steele, and a Mr. Child, all employees of the I.R.S., ("I.R.S. defendants") violated his constitutional rights by denying his claim for an exemption from withholding taxes and by failing to provide administrative appeal rights with respect to that denial. See Amended Complaint at 4-5. Plaintiff also claims that the I.R.S. defendants violated his constitutional rights by assessing him with three separate $500.00 penalties, allegedly because the plaintiff filed false statements in connection with his claimed exemption from withholding taxes.

 Plaintiff further alleges that the defendants Walter Miller and other agents of Forest Electric Co., plaintiff's former employer (the "Forest defendants"), *fn2" conspired with the federal defendants to violate his constitutional rights by withholding income taxes from plaintiff's paycheck. See id. at 3. Plaintiff also alleges that these defendants breached a contractual agreement with the plaintiff which allegedly provided that the Forest defendants would not withhold taxes from his paycheck. See Complaint at 9; see also Plaintiff's Answer of Statements in Affidavit of Walter Miller at [P] 10. *fn3"

 The federal defendants move to dismiss or, in the alternative, for summary judgment on the grounds of improper venue and for failure to state a claim upon which relief can be granted. The Forest defendants also move to dismiss or, in the alternative, for summary judgment, for failure to state a claim.


 It is undisputed that the plaintiff sought from the I.R.S. a total exemption from withholding taxes. It is also undisputed that the I.R.S. advised both the plaintiff and the Forest defendants that plaintiff's claim for exemption was denied. See Affidavit of Dale Coy ("Coy Aff.") at [P][P] 8, 14, 20; see also Plaintiff's Answer of Statements in affidavit of Walter Miller at [P] 3. Moreover, it is undisputed that the I.R.S. directed the Forest defendants to take out withholding taxes from plaintiff's paycheck and that the Forest defendants complied with this order. See Exhibit L to Coy Aff.; Plaintiff's Answer of Statements in Affidavit of Walter Miller at [P][P] 3-4. Finally, the federal defendants concede that the plaintiff was assessed three $500 penalties, pursuant to 26 U.S.C. § 6682, for allegedly providing the I.R.S. with false statements with respect to three applications by the plaintiff seeking an exemption from withholding taxes. See Coy Aff. at [P][P] 8, 14, 20. *fn4"


 I. Plaintiff's Claims Against the Forest Defendants

 Plaintiff's claims for damages and injunctive relief against the Forest defendants are frivolous. Pursuant to 26 U.S.C. § 3403 (1982), once the Forest defendants were informed by the I.R.S. to "disregard . . . [plaintiff's] Form W-4 and withhold tax as if the [plaintiff] were single and claiming one withholding allowance," see Exhibit L to Coy Aff., the Forest defendants were required by law to withhold income taxes. See 26 U.S.C. § 3402(a). Plaintiff clearly may not seek damages against these defendants merely because they did what they were legally required to do. See 26 U.S.C. § 3403 (1982); Lonsdale v. Smelser, 553 F. Supp. 259 (N.D.Tex. P 1982). Moreover, even assuming that the Forest defendants were proper parties against whom the plaintiff may seek an injunction prohibiting the collection of withholding tax, such injunctive relief is clearly barred by the Anti-Injunction Act, 26 U.S.C. § 7421(2) (1982). See Bob Jones University v. Simon, 416 U.S. 725, 736, 40 L. Ed. 2d 496, 94 S. Ct. 2038 (1974). Therefore, the Forest defendants' motion for summary judgment is granted. *fn5"

 II. Plaintiff's Claims Against the Federal Defendants

 Since the I.R.S. defendants persist in their claim that venue is improper, the Court must address this issue. The applicable venue statute provides that plaintiff's action may only be brought in the judicial district where all defendants reside or in which the claim arose. See 26 U.S.C. § 1391(b) (1982). *fn6" It is undisputed that all of the federal defendants reside in Utah. Therefore, plaintiff's claim is properly brought in this district only if the claim "arose" in the Southern District of New York.

 Defendants affidavits establish that plaintiff's claims for exemption from withholding tax were all processed at the Ogden Service Center, Ogden, Utah. See, e.g., Coy Aff. at [P] 2. Moreover, all of the letters sent by the I.R.S. in this case with respect to plaintiff's claim, e.g., letters denying plaintiff's exemption or assessing the $500.00 penalties for false statements, were all sent from Ogden, Utah. See, e.g., Exhibit L to Coy Aff. Nowhere in plaintiff's numerous affidavits have these facts been disputed.

 The only facts plaintiff offers in support of his contention that his claim arose in this district is that he was working for Forest Electric Co. in New York when the I.R.S. denied his claim for exemption from withholding taxes, see Plaintiff's Opposition to Defendants' Motion to Dismiss and Supporting Memorandum of Points and Authorities at 4, and that he received notice that the I.R.S. denied his claim in his paycheck which was received in New York, see Plaintiff's Answer of Statements in Affidavit of Walter Miller at [P] 3. *fn7" These facts are clearly insufficient to establish venue in this district.

 By providing for venue in the judicial district in which the plaintiff's claim arose, Congress clearly did not intend to provide the plaintiff with an unfettered choice among a variety of different judicial districts, merely because some occurance relevant to plaintiff's claim may have occurred in each district. See Leroy v. Great Western United Corp., 443 U.S. 173, 185, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1978). Thus, except in "unusual" cases, a claim arises for the purposes of § 1391(b) in only one judicial district. See id. Moreover, in determining where the claim arose, the Court must bear in mind that the venue statute is designed to protect the "defendant against there risk that a plaintiff will select an unfair or inconvenient place of trial." See id. at 184 (emphasis in original).

 In determining the district in which the claim arose, courts generally look to the district where the "weight of the contacts" or the "events having operative significance" for plaintiffs' claim occurred." See Andrew H. by Irene H. v. Ambach, 579 F. Supp. 85, 88 (S.D.N.Y. 1984); see also Seabrook Foods, Inc. v. Seabrook Brothers, Inc., 495 F. Supp. 792, 793 (S.D.N.Y. 1980); Weil v. New York State Dept. of Transportation, 400 F. Supp. 1364, 1365 (S.D.N.Y. 1975); see generally 15 C. Wright, A. Miller & H. Cooper, Federal Practice and Procedure 3806 at 54-60 (2d ed. 1986). Clearly, the facts of this case with operative significance to plaintiff's claim occurred in Utah. This is where all of the alleged unconstitutional actions of the federal defendants occurred. The mere fact that the plaintiff was informed in this district of the defendants actions in Utah is insufficient to support venue in this district. See Andrew H., supra, 579 F. Supp. at 88; Weil, supra, 400 F. Supp. at 1365. Therefore, the Court is constrained to dismiss plaintiff's claims against the federal defendants for improper venue. *fn8"


 For the reasons set forth supra, the Forest defendants' motion for summary judgment is granted. The I.R.S. defendants' motion to dismiss for improper venue is also granted. Accordingly, the Clerk of the Court is hereby directed to close the above-captioned action.


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