The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Danielle Randazzo, a spring 2004 intern in my Chambers and a second-year law student at New York Law School, provided substantial assistance in the research and drafting of this Opinion.
Plaintiff, Kyung Min Kim ("Kim") moves for summary judgment and for
attorney's fees and costs pursuant to the Equal Access to Justice Act, as
amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412 ("EAJA"). Defendants,
Eduardo Aguirre, Jr., Director of the United States Bureau of Citizenship
and Immigration Services ("CIS"), and Mary Ann Gantner,*fn2 Interim
District Director of CIS's New York District (collectively "defendants")
move to dismiss Kim's complaint based on improper venue and mootness,
pursuant to Rules 12(b)(1) and (3) of the Federal Rules of Civil Procedure
("Fed.R. Civ. P."). For the foregoing reasons, defendants' motion is
Kim, a resident of Bayside, Queens, filed her N-400 Application for
Naturalization ("application") to become a citizen of the United States
on February 3, 1997. On June 21, 1999, Kim had an initial interview and
fingerprinting, as required for naturalization. However, due to CIS'
substantial delay in processing Kim's application, her fingerprints
expired. Therefore, Kim had to succumb to fingerprinting two additional
times the third session taking place on August 19, 2000.
During the period subsequent to her interview, each time that Kim
inquired about the status of her application, CIS explained that the
delay was caused by the need to locate an administrative file in another
district. Despite the fact that CIS had initially informed Kim that the
adjudication of her application would take between thirty to ninety
days, by August 25, 2003, 665 days had passed without a resolution. On
this date, after waiting patiently for almost seven years, Kim sought a
writ of mandamus in this Court. Shortly thereafter, Kim received from CIS
a notice to appear at a December 9, 2003 oath ceremony, and was
subsequently sworn in as a natural citizen on such date.
The Court need not address defendants' mootness argument nor
plaintiff's motions for summary judgment and EAJA fees because the
Southern District is not the proper venue for this action. Plaintiff
filed this underlying action for mandamus relief pursuant to the
Immigration and Nationality Act ("INA"), 8 C.F.R. § 310 (2003). This
statute provides that "[a]n applicant for naturalization may seek
judicial review of a pending application for naturalization in those
instances where the Service fails to make a determination under section
335 of the Act within 120 days after an examination is conducted under
part 335 of this chapter." This statute places venue in the "United States
District Court having jurisdiction over the district in which the
applicant resides." 8 C.F.R. § 310.5 (emphasis added).
While it is uncontested that Kim resides in Queens, and therefore that
pursuant to § 310.5, the proper district to bring this suit would have
been the Eastern District of New York, plaintiff asserts that
28 U.S.C. § 1391 (2004), the general venue statute, which lays venue more
broadly, is also applicable. § 1391(e) states in relevant part that "a
civil action in which a defendant is an officer or employee of the United
States or any agency thereof acting in his official capacity or under
color of legal authority, or any agency of the United States, or the
United States, may, except as otherwise provided by law, be brought in
any judicial district in which (1) a defendant in the action resides, (2)
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) the plaintiff resides if no real property is
involved in the action." (emphasis added). As a result,
plaintiff argues that venue is also proper in this District as the
defendant resides herein. However, the general venue statute, by its own
words, is not applicable in cases such as this one where venue is
"otherwise provided by law." Because § 310.5 has a venue component,
§ 1391 is inapposite. Therefore, venue is improper. C.f Bahet v.
Ashcroft, 01 Civ. 9334, 2002 WL 971712, at *1 (S.D.N.Y. Apr. 10,
2002) (stating in dicta that improper venue would have served as an
alternative basis for dismissal in a naturalization case where the
plaintiff resided in Queens yet filed in the Southern District of
When venue is improper, "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) (emphasis added); Minnette v. Time Warner,
997 F.2d 1023, 1026 (2d Cir. 1993). As Kim waited far too long for her
day in court (a delay I trust that CIS has at least begun to remedy),
rather than dismiss, I will transfer the case "in the interest of
justice" to the Eastern District of New York, where venue is proper.
For all of the foregoing reasons, defendants' motion is
granted-in-part, and the case is transferred to the Eastern District of
New York, where venue is proper. The Clerk is requested to close the
motions and any other open motions, remove this case from my docket, and
transfer the case to the Eastern District of New York.*fn3
*fn2 Mary Ann "Gartner" should read Mary Ann "Gantner."
*fn3 The only open issues are whether plaintiff is entitled to EAJA
fees (which requires a grant of summary judgment in plaintiffs favor) or
instead whether the case should be ...