The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
In this action, Plaintiff Simon Kirk ("Plaintiff"), a veterinarian and a citizen of Canada, alleges that New York State Education Law § 6704 is unconstitutional, since it restricts the granting of professional veterinarian licenses to United States Citizens and aliens lawfully admitted for permanent residence in the United States.*fn1 Now before the Court is a motion [#10] by Defendants, for an order dismissing this action for improper venue, or, in the alternative, transferring venue to the United States District Court for the Northern District of New York. For the reasons that follow, the application is denied.
Plaintiff is a Canadian citizen who is presently attempting to obtain Permanent Resident Alien status in the United States. Although Plaintiff is neither a United States citizen or a Permanent Resident Alien, he has obtained Trade NAFTA ("TN") status, which permits him to live and work in the United States temporarily.*fn2 Although, as mentioned above, the State of New York restricts veterinary licenses to United States Citizens or aliens lawfully admitted for permanent residence in the United States, Plaintiff was able to obtain a temporary waiver of those requirements by providing proof "that there [was] a shortage of otherwise qualified veterinarians." Education Law § 6704(6). As a result, Plaintiff has been practicing veterinary medicine in the Town of Brighton, New York, for almost four years. However, Plaintiff's waiver will expire in a few months, and consequently, he is challenging the constitutionality of the citizenship requirement found in Education Law § 6704(6). Specifically, he alleges that the requirement violates the 14th Amendment Equal Protection Clause, since it "discriminates against aliens," and further violates the Supremacy Clause, since it conflicts with NAFTA.
Plaintiff brings this action pursuant to 42 U.S.C. § § 1981 and 1983. According to the Complaint, venue in the Western District of New York is specifically and solely premised upon the Plaintiff's residence in the County of Monroe, State of New York. (Complaint [#1] ¶ 9) ("The United States District Court for the Western District of New York is a proper venue for this action because the plaintiff is a resident of Monroe County, New York.").
Defendants contend that venue is not proper in the Western District of New York, pursuant to 28 U.S.C. § 1391(b), because the Plaintiff's place of residence is irrelevant to venue, and because "[t]here are no other factual allegations in the complaint to support venue" in the Western District of New York. (Defendants' Memo of Law [#12] at 3). Additionally, Defendants deny that they "reside" in the Western District for purposes of venue, or that a substantial part of the events or omissions giving rise to the claim occurred in the Western District. With regard to residency, Defendants maintain that their official residences are in Albany, New York, which is located in the Northern District of New York. More specifically, Defendants state:
Although the New York State Department of Education has offices throughout New York State, the central office . . . is 89 Washington Avenue located in Albany, New York.
The address for the New York State Board of Regents is located at Room 110 in the Education Building, 89 Washington Avenue in Albany, New York.
Richard P. Mills is the Commissioner of the New York State Department of Education and his office is located in Room 111 of the Education Building, 89 Washington Avenue in Albany, New York.
Robert Bennett is the Chancellor of the Board of Regents. Mr. Bennett serves in his official capacity in the Regents Office, located at Room 110 of the Education Building, 89 Washington Avenue in Albany, New York. (Tahoe Affidavit ¶ ¶ 4-7) (paragraph numbering omitted).
In opposition to the motion, Plaintiff maintains that Defendants are residents of the Western District of New York, and that a substantial part of the events or omissions giving rise to the claim occurred here. In support of those claims, Plaintiff argues that "the defendants have offices and personnel throughout the State of New York, not merely in Albany." (Kirk Affidavit ¶ 34). In that regard, he contends that the New York State Education Department and the New York State Board of Regents maintain offices in the Cities of Rochester and Buffalo, which are located in the Western District. Plaintiff also maintains that "the principal effect of the [challenged provision of the statute] will be felt [in the Western District of New York], where [his] ability to practice [his] profession is in jeopardy," since he has lived and worked in the Western District of New York since 2002. (Id.). Although these factors are different than the purported basis for venue contained in the Complaint (Plaintiff's residence), Plaintiff asks, in the alternative, that he be allowed to amend the Complaint.
On March 14, 2008, counsel for the parties appeared before the undersigned for oral argument of the motion. At that time, the Court indicated that it would permit Plaintiff to amend the allegations in his Complaint pertaining to venue, to conform with the proof ...