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BENT v. BERMAN

July 25, 1994

BRUCE R. BENT, CHARLES H. BRUNIE, E. E. GEDULD, RICHARD GILDER, VIRGINIA GILDER, WILLIAM I. INGRAM, BRUCE KOVNER, CHARLES PARLATO, THOMAS L. RHODES, and ROBERT W. WILSON, Plaintiffs,
v.
CAROL BERMAN, in her official capacity as Chairperson of the Board of Elections of the State of New York; OWEN T. SMITH, HELENA M. DONOHUE, and EVELYN AQUILA, in their official capacities as Commissioners of the Board of Elections of the State of New York; and the BOARD OF ELECTIONS OF THE STATE OF NEW YORK, Defendants.



The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM

 CEDARBAUM, J.

 This action arises from a constitutional challenge to subpoenas which were issued by the New York State Board of Elections (the "Board") from its office in the Northern District of New York and served on ten individuals in the Southern District of New York. The subpoenas require plaintiffs' appearance before the New York City Board of Elections in the Southern District to testify in connection with an investigation being conducted by the Board concerning two political organizations, whose principal headquarters are in the Northern District. The subpoenas also request that plaintiffs produce all documents in their possession relating to these political organizations, as well as information regarding any political contributions made by plaintiffs in 1992.

 Defendants move to dismiss for improper venue, pursuant to Fed. R. Civ. P. 12(b)(3), or to transfer this case to the Northern District of New York, pursuant to 28 U.S.C. § 1406(a). In the alternative, defendants move to transfer this case, pursuant to 28 U.S.C. § 1404(a). For the reasons discussed below, defendants' motions are denied.

 Background

 In 1992, after receiving several written complaints that certain provisions of the New York Election Law were being violated by Citizens Helping Achieve New Growth and Employment-New York, Inc. ("CHANGE-NY") and Political Action Committee to Kick-out Unproductive Politicians ("PACK-UP"), the Board launched an investigation into the activities of these political organizations. The subpoenas at issue here are the third set of subpoenas issued in connection with this investigation that have been challenged in court.

 Between March 25 and April 7, 1994, the subpoenas at issue here were served on plaintiffs. Plaintiffs commenced this action on May 4, 1994, alleging that the subpoenas violate their rights of freedom of association and freedom of speech protected by the Constitution of the United States and the Constitution of the State of New York.

 Discussion

 I. Dismissal or Transfer Pursuant to 28 U.S.C. § 1406 (a)

 Defendants contend that there is no valid basis for venue in the Southern District of New York and that this case must therefore be dismissed or transferred to the Northern District of New York, pursuant to 28 U.S.C. § 1406(a). This section provides that "the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).

 Section 1391(b) of Title 28 of the U.S. Code provides the following:

 
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may . . . be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

 Plaintiffs do not contend that any of the defendants reside in this district. Instead, plaintiffs rely on § 1391(b)(2), and assert that "a substantial part of the events . . . giving rise to the claim occurred" in the Southern District of New York. Plaintiffs argue that the service of the subpoenas in the Southern District and the demand that plaintiffs appear for depositions in the Southern District are a substantial part of the events giving rise to their claim against defendants. In addition, plaintiffs argue that since they are all ...


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