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March 20, 2000


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.


Plaintiff Henry Hall brings this action against defendants South Orange, Franklin Township, William Young, Detective Collum and certain unknown defendants asserting both New York state law claims of false imprisonment, battery, assault, and intentional infliction of emotional distress, and violations of his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Before this Court are defendants' motions to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) or to transfer venue pursuant to either 28 U.S.C. § 1406(a) or 28 U.S.C. § 1404(a). For the reasons set forth below, defendants' motion to transfer pursuant of § 1404(a) is granted.


This action arises out of the kidnaping of plaintiff Henry Hall ("Hall"), a resident of Kings County, New York, by defendant William Young ("Young"), a retired South Orange police officer and resident of New Jersey. On Sunday, May 24, 1998, while leaving the Hampden Inn in Elmsford, New York, Hall was abducted by Young who identified himself as a police officer and member of a New Jersey fugitive squad who was enforcing a New Jersey warrant for Hall's arrest. Plaintiff further alleges that Young produced documents purporting to be an outstanding warrant for Hall's arrest from Union City, New Jersey, and a criminal history report from the South Orange and/or Franklin Township Police Departments, both in New Jersey and both defendants in this action.

Young and an accomplice handcuffed the plaintiff, threw him into the back seat of their car, injuring his shoulder, and transported him to a warehouse in Newark, New Jersey, where he was bound and blindfolded with duct tape. At the warehouse, Young and his accomplice dragged plaintiff to a forklift and tied him to a roll bar with electrical cord. Plaintiff was left in the New Jersey warehouse for three hours, until the Newark police freed him. Defendant Young was convicted of the kidnaping in a criminal proceeding in this District.

The facts underlying plaintiff's claims against defendants Franklin Township Police Department, Detective Collum and the South Orange Police department are not stated in detail in the complaint and are somewhat unclear. Plaintiff essentially alleges that Young was improperly afforded access to New Jersey law enforcement resources. The complaint further alleges that the Township failed to properly train, supervise and discipline its police officers and that such failure, in part, caused the events referred to in the complaint.


Defendants move to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue or, in the alternative, to transfer this action under either 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406(a). Transfer is warranted under § 1404(a) only if venue is proper in both the court transferring the action and the court to which the action is transferred. Section 1404(a) provides that "[f]or 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."

Section 1406(a) applies where the court in which the action was filed lacks jurisdiction and must either dismiss or transfer the action to an appropriate forum. Section 1406(a) provides, "[t]he 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).

Before deciding defendants motions, we must first determine whether jurisdiction is proper in this Court under the applicable general venue statute. That inquiry will determine whether the action should be dismissed or transferred under either 1404(a) or 1406(a).

I Venue Statute

Because plaintiff brings claims under 42 U.S.C. § 1983 alleging violations of constitutional rights, subject matter jurisdiction exists under 28 U.S.C. § 1331 and supplemental jurisdiction exists under 28 U.S.C. § 1367. Consequently, the proper venue for this case is defined by 28 U.S.C. § 1391(b), which provides that:

A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, 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 (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(b); see also Bates v. C & S Adjusters, Inc., 980 F.2d 865, 866-67 (2d Cir. 1992) (discussing legislative history and judicial interpretation of § 1391(b)); Garrel v. NYLCare Health Plans, Inc., No. 98 Civ. 9077(BSJ), 1999 WL 459925, at *3 (§ 1391(b) governs § 1981 claim); Goldenberg v. Lee, No. 97 Civ. 5297(RJD), 1999 WL 390611, at *4 (E.D.N Y Apr.15, 1999) (venue transferred under § 1391(b)(1) to Central District of California, where defendant resides); Cobra Partners L.P. v. Liegl, 990 F. Supp. 332, 333-34 (S.D.N.Y. 1998) (granting transfer under § 1391(b)(1)); McDonald v. General Accident Ins. Co., No. 96 Civ. 326, 1996 WL 590722, at *2 (N.D.N.Y. ...

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