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KAMPFER v. SCULLIN

October 6, 1997

DOUGLAS E. KAMPFER and BARBARA KAMPFER, Plaintiffs, against FREDERICK J. SCULLIN, JR. and UNITED STATES OF AMERICA, Defendants.


The opinion of the court was delivered by: KAHN

 Introduction

 Plaintiffs Douglas E. Kampfer and Barbara J. Kampfer (collectively, "the Kampfers") bring this civil rights action against defendants Frederick J. Scullin, Jr., United States District Court Judge for the Northern District of New York, ("Judge Scullin") and the United States of America ("the Government"). *fn1" Presently before the Court are defendants' motion to dismiss, or in the alternative for summary judgment, plaintiffs' cross-motion for sanctions, plaintiffs' request for entry of default against Judge Scullin, and plaintiffs' motion for a change of venue. Plaintiffs seek leave to amend their complaint to seek compensatory and punitive damages in the event the injunctive relief they seek is unavailable. See Dkt. No. 13 at 1.

 Background

 This action arises out of a prior case in which plaintiffs were involved in the Northern District of New York. The Kampfers allege that on May 1, 1995, they filed a motion for an order of protection for their children in Civil Action No. 94-CV-0201, a case in which Judge Scullin was the designated trial judge. *fn2" The Kampfers claim that Judge Scullin failed to hear the motion, provide a date and time "for the Plaintiffs to ventilate their (sic) grievances," or rule on their motion. The Kampfers allege that these failures allowed William Gokey and Ernest Clapper *fn3" "to violate the Plaintiffs (sic) Rights as parent to give their children a (sic) Education in the Public school of their choosing, and Equal Protection under the Law . . ." Cmplt. P 4. The complaint does not identify the specific action by Gokey and Clapper about which the Kampfers complain.

 The Kampfers commenced the instant action pro se on October 11, 1996, alleging that defendants violated their rights "to petition the government for redress of grievances" and to "equal protection of the laws" pursuant to (1) the United States Constitution, "particularly the First Amendment" (2) Fed.R.Civ.P. 78; and (3) 18 U.S.C. §§ 241-42. Plaintiffs allege that 28 U.S.C. § 1331 confers jurisdiction on this court. Plaintiffs seek the following relief: (1) preliminary and permanent injunctions mandating establishment of a "preventive measure" or local rule (a) requiring judges and magistrates to take "swift and proper action" on motions and (b) providing for sanctions or impeachment to punish violations of the rule; (2) a "prospective injunction" setting a return date before an "unbiased" judge for the contested May 1, 1995, motion made in Civil Action No. 94-CV-0201; (3) costs and expenses of the present action; and (4) other relief as the court deems proper.

 On February 13, 1997, defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 56. Defendants contend that the court lacks subject matter jurisdiction over plaintiffs' claims because (1) plaintiffs' claims are barred by the doctrine of sovereign immunity; (2) the court lacks the power to grant the requested relief; and (3) plaintiffs lack standing to compel the court to enact or modify a local rule. Defendants also argue that the complaint fails to state a claim for (1) injunctive relief; (2) preliminary injunctive relief; (3) a due process violation; (4) an Equal Protection violation; (5) a First Amendment violation; or (6) a violation of 18 U.S.C. §§ 241-42 or Fed. R.Civ.P. 78. Finally, defendants assert that plaintiffs' claims seeking enactment or modification of a local rule or general order are barred by the doctrine of legislative immunity and that plaintiffs' claim for injunctive relief against Judge Scullin in his official capacity arguably may be barred by the doctrine of absolute judicial immunity.

 On February 20, 1997, the Kampfers filed an affidavit and memorandum of law in opposition to defendants' motion and a Rule 7.1 (f) statement. The Kampfers first argue that the court should deny defendants' motion because the allegations that Judge Scullin refused to consider plaintiffs' motion thereby denying them a "review of their grievances" effectively states a claim under the First Amendment. Dkt. No. 13, at 4-5, 9-10. Next, the Kampfers argued that the action is only against Judge Scullin in his individual capacity for a non-judicial act. The Kampfers contend that refusing to act on plaintiffs' motion constituted a non-judicial act because the action was taken in violation of plaintiffs' due process rights and was an act that normally would not have been performed by other judges. Dkt. No. 13, at 6-7. Plaintiffs also requested leave to amend their complaint if the relief they seek is unavailable.

 On February 21, 1997, the Kampfers also filed a cross-motion for sanctions "pursuant to Federal Rules of Civil Procedure 11 (b)" against Assistant United States Attorney Thomas Spina, Jr., alleging Spina improperly altered the case title to indicate that the United States of America is a defendant. In the affidavit submitted with their cross-motion, the Kampfers state that "the United States is not and never has been a defendant in this action, this action is against Frederick J. Scullin in his individual capacity," Dkt. No. 14 P9, and contend that AUSA Spina altered the case title for the sole purpose of protecting Judge Scullin against defaulting in appearance, Dkt. No. 14 P8. The Kampfers allege that by making the United States a defendant, AUSA Spina was able to respond to the complaint (thereby making it appear that Judge Scullin had answered and protecting him from defaulting), and at the same time make a motion to dismiss on the basis of sovereign immunity (pursuant to which plaintiffs aver that the United States cannot be sued). Consequently, the Kampfers argue that the motion to dismiss is frivolous, and the court should sanction Assistant U.S. Attorney Spina.

 On February 24, 1997, the Government responded to plaintiffs' motion for sanctions in a letter to the court. The Government contended that the court should summarily deny plaintiffs' motion as frivolous because (1) the caption of the complaint includes "UNITED STATES OF AMERICA" as a defendant; (2) the complaint signifies multiple defendants by the use of the word "Defendants" (emphasis added) in the caption; and (3) plaintiffs use the phrase "et al." *fn4" on their cover letter accompanying their motion for sanctions.

 On February 26, 1997, the Kampfers wrote to the court contending again that the United States has never been a defendant in this action. In addition, the Kampfers reasoned that because the United States is not a defendant in this action and the United States Attorney filed its motion only on behalf of the United States, the court should deny the Government's motion. The Kampfers also requested that the court "enter Default" based on Judge Scullin's alleged failure to appear thus far in the case. On March 5, 1995, the Kampfers sought entry of default from the clerk of the court as well, and the clerk referred the request to the court for consideration along with the pending motions.

 On April 21, 1997, the parties appeared before the Honorable Rosemary S. Pooler, District Judge, for a hearing on the above motions. Judge Pooler informed the plaintiffs that a potential conflict of interest exists because AUSA Spina is representing her in at least two lawsuits. The Kampfers then requested that Judge Pooler recuse herself from the case. Judge Pooler granted the Kampfers' application and reassigned the matter to this court by order filed on April 28, 1997.

 On May 12, 1997 the Kampfers filed another motion, this time seeking a change of venue to the District of Vermont. The Kampfers contend that venue should be changed in the interest of justice pursuant to 28 U.S.C. § 1404(a) due to the bias they allege exists in favor of AUSA Spina and Judge Scullin on the part of the judges of this district. The Kampfers contend that Judge Pooler withheld the fact that AUSA Spina was representing her "causing Pro Se litigants to travel needlessly to Motion hearing (sic), only to recuse, gives (sic) the appearance of bias and it gives rise to the appearance that Judges for that District are attempting to protect their colleagues." Dkt. No. 28 at 5. The Kampfers also allege that the court has failed to enforce its local rules because the clerk's office failed to reject the letter filed by AUSA Spina in response to plaintiffs' motion for sanctions.

 In opposition to the Kampfers' motion for a change of venue, the Government argues that the action could not have been brought in Vermont initially and that all known parties, witnesses, and evidence are located within the Northern District of New York.

 Discussion

 A. Plaintiffs' Motion for a Change of Venue

 The court will first address the Kampfers' motion for a change of venue.

 The statute upon which the plaintiffs rely, 28 U.S.C. § 1404(a), provides that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." As the defendants correctly note, a transfer of the place of trial under this subsection is only permitted if venue would have been proper in the transferee district. To determine if venue would have been proper in the District of Vermont, the court turns to 28 U.S.C. § 1391(b) which provides:

 
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought 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 ...

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