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DODSON v. RUNYON

March 7, 1997

THOMAS DODSON, Plaintiff, against MARVIN RUNYON, POSTMASTER GENERAL FOR THE UNITED STATES POSTAL SERVICE, Defendant.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Currently before this Court are plaintiff Thomas Dodson's ("plaintiff" or "Dodson") motion to transfer venue, and defendant Marvin Runyon's ("defendant" or "Runyon") motion to dismiss for failure to prosecute. For the following reasons, plaintiff's motion is denied and defendant's motion is granted.

 BACKGROUND

 Plaintiff, acting pro se, brought a complaint that he was terminated from his job with the United States Postal Service because of his race, in violation of 42 U.S.C. Sections 2000e to 2000e-17 in 1987. For a period of time after he filed his Complaint, plaintiff attempted to prosecute his case while acting pro se. All action ceased after plaintiff filed his Amended Complaint in the spring of 1989. In June 1990, plaintiff retained an attorney, Antonio Marano ("Marano"). Mareno, however, also failed to take action in this case. In response to this inaction, defendant brought a motion to dismiss plaintiff's action for failure to prosecute pursuant to Federal Rule of Civil Procedure ("Rule")4 41(b). In an Order dated February 6, 1995, this Court granted defendant's motion. Order, Dodson v. Runyon, 87 Civ. 4156 (Feb. 6, 1995) ("1995 Order").

 Following the Second Circuit's remand, this Court granted defendant permission to renew its motion to dismiss, and advised the parties that any jurisdictional arguments that the parties wished to raise also could be included in any motion papers filed with the Court. On January 6, 1997, defendant filed with this Court its renewed motion to dismiss. (Defendant's Memorandum of Law in Support of its Renewed Motion to Dismiss for Failure to Prosecute or, in the Alternative, for Summary Judgment Following Remand, Dodson v. Runyon, 87 Civ. 4156 (Jan. 6, 1997) ("Deft. Memo").) In response, plaintiff filed a "Notice of Cross-Motion" for "an order pursuant to Rule 22 of the Rules for Division of Business Among Judges, reassigning this action to the White Plains court." (Notice of Cross-Motion, Dodson v. Runyon, 87 Civ. 4150 (Feb. 6, 1997) ("Cross-Motion").) Plaintiff filed no response to defendant's motion to dismiss.

 DISCUSSION

 Plaintiff's Cross-Motion raises the issue whether venue is proper in this Court, and resolution of this issue affects this Court's ability to decide the other, substantive questions presently before this Court. Accordingly, this Court will address plaintiff's Cross-Motion first.

 I. Plaintiff's Motion to Transfer Venue

 Plaintiff asserts that venue in this case is proper in the White Plains division of the Southern District of New York, not in Manhattan. Along with his Cross-Motion, plaintiff filed a document entitled "Supporting Affirmation" from his attorney Marano. (Supporting Affirmation, Dodson v. Runyon, 87 Civ. 4150 (Feb. 6, 1997) ("Marano Aff.").) The entirety of Mareno's Affirmation is as follows:

 
ANTONIO MARANO, an attorney admitted to practice in this Court, and the attorney for the plaintiff, affirms, under penalties of perjury, as follows:
 
I am familiar with all of the proceedings in this civil rights action, and make this affirmation in opposition to the renewal of the defendant's alternative dispositive motions as well as in support of plaintiff's cross-motion to transfer this action to the White Plains courthouse for reassignment pursuant to Rule 22 of the RULES FOR THE DIVISION OF BUSINESS AMONG DISTRICT JUDGES.
 
From its inception this case has languished in the wrong venue as the result of the filing of the Pro Se complaint at Foley Square rather than at White Plains where the plaintiff resides and where the cause of action arose. The court need look no further then to paragraphs 2 through 4 of the Amended Complaint which were admitted in the defendant's answer for confirmation of the foregoing statement.
 
By reason of these venue admission in the pleadings, it is incumbent upon this Court to transfer the action to the White Plains court for further proceedings, and I urge the court to do so rather than to perpetuate ...

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