United States District Court, D. Colorado
Brooke Jackson United States District Judge
R. Brooke Jackson This matter is before the Court on
defendants' motion to dismiss plaintiffs' suit
challenging the government's denial of a visa petition
filed by plaintiff Tyler Pitman on behalf of his wife,
plaintiff Liliana Damaschin. See Defs.' Mot. to
Dismiss, ECF No. 9; Compl., ECF No. 1. Defendants move to
dismiss plaintiffs' suit under both Rule 12(b)(3) and
Rule 12(b)(6). See ECF No. 9. With respect to Rule
12(b)(3), they contend that because plaintiffs' suit only
bears a tangential relationship to Colorado, venue is
improper here. ECF No. 9 at 11-12. They argue that this case
should therefore be dismissed outright or, in the
alternative, transferred under 28 U.S.C. §1406(a) to the
District of Utah, which is where the government initially
denied Mr. Pitman's visa petition. See ECF No.
15 at 4. Although I find that venue is properly laid in the
District of Colorado, I agree with defendants that this case
should be transferred. Accordingly, the Court transfers this
case under 28 U.S.C. § 1404(a) to the District of Utah.
Venue is Proper in the District of Colorado under 28 U.S.C.
I find that defendants are incorrect that venue was
improperly laid in this Court. 28 U.S.C. § 1391(e)(1)(A)
governs whether venue is proper in actions like this one that
name officers or employees of the United States as
defendants. It provides that venue is proper in any
judicial district in which one of those named defendant
federal officers or employees “resides, ” which
has been interpreted to mean the district where any of these
officers or employees perform their official duties.
See 28 U.S.C. § 1391(e)(1)(A); Lamont v.
Haig, 590 F.2d 1124, 1128 n.19 (D.C. Cir. 1978).
plaintiffs have named as a defendant A. Kristi Barrows, a
Denver-based director with the United States Citizenship and
Immigration Services (“USCIS”). See ECF
No. 1 at 1. Because Ms. Barrows performs her official duties
in Colorado, which generally include overseeing the
USCIS' office in Salt Lake City that denied Mr.
Pitman's petition, venue is proper in this Court. 28
U.S.C. § 1391(e)(1)(A); see Bourdon v. U.S.
Dep't of Homeland Sec., No. CV 15-2241, 2017 WL
635481, at *3 (D.D.C. Feb. 16, 2017). Defendants' motion
to dismiss under Rule 12(b)(3) is accordingly denied.
Transfer under 28 U.S.C. § 1404(a) is Nonetheless
I find that venue is proper here, defendants nevertheless
make a good point that this case bears a minimal connection
to this District and should arguably be transferred. However,
because venue was properly laid here, I must decide whether
transfer is appropriate under 28 U.S.C. § 1404(a)
(inconvenient venue) rather than 28 U.S.C. §1406(a)
(improper venue). See Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1521 (10th Cir. 1991);
see also WildEarth Guardians v. U.S. Forest Serv.,
No. 1:11-CV-03171-AP, 2012 WL 1415378, at *2 (D. Colo. Apr.
24, 2012) (“Any party, and even the court sua
sponte, can move for transfer of an action under §
so, I must follow a two-step process. See, e.g.,
Wolf v. Gerhard Interiors, Ltd., 399 F.Supp.2d 1164,
1166 (D. Colo. 2005). First, I must assess whether the
transferee forum- here, the District of Utah-is one in which
the action “might have been brought” initially.
See 28 U.S.C. § 1404(a); Wolf, 339
F.Supp.2d at 1166. Second, I must decide whether certain
factors weigh in favor of transferring this case to that
district. See Wolf, 339 F.Supp.2d at 1167.In the
Tenth Circuit, these include:
[P]laintiff's choice of forum; accessibility of witnesses
and other sources of proof, including availability of
compulsory process to insure attendance of witnesses; cost of
making necessary proof; questions as to enforceability of
judgment if one is obtained; relative advantages and
obstacles to fair trial; difficulties that may arise from
congested dockets; possibility of existence of questions
arising in area of conflicts of laws; advantage of having
local court determine questions of local law; and all other
considerations of a practical nature that make a trial easy,
expeditious, and economical.
Id. (citing Chrysler Credit Corp., 928 F.2d
after making this two-step determination, I find that
transfer is warranted. At step one, I find that the
transferee district-the District of Utah-is a proper venue
because plaintiffs have named as a defendant the Field Office
Director of the USCIS' office in Salt Lake City, and
because that office initially denied Mr. Pitman's
petition, meaning that “a substantial part of the
events . . . giving rise to” plaintiffs' suit
occurred there. See 28 U.S.C. § 1391(e)(1)(A);
id. § 1391(b)(2); ECF No. 1 at ¶15.
brings me to step two. To the extent the factors the Tenth
Circuit has recognized are relevant in this case, I find that
they generally weigh in favor of transfer. I begin with
plaintiffs' choice of forum. Although plaintiffs'
forum choice is ordinarily entitled to deference, that
deference is substantially diminished where, as here,
plaintiffs lack any connection to the forum they choose.
See McGahee v. Trumbull Ins. Co., No.
11-CV-03007-WYD-MEH, 2012 WL 1388859, at *3 (D. Colo. Apr.
23, 2012) (citations omitted); see also S. Utah
Wilderness All. v. Norton, 315 F.Supp.2d 82, 86 (D.D.C.
2004) (“[D]eference [to a plaintiff's choice of
forum] . . . is lessened when plaintiff's forum choice
lacks meaningful ties to the controversy and [has] no
particular interest in the parties or subject matter.”)
(internal quotation marks and citations omitted).
as a practical matter, while both this Court and the District
of Utah are equally capable of deciding the federal law
questions underlying this case, I find that this suit bears
only a remote connection to Colorado. After all, both
plaintiffs reside in Wyoming, Mr. Pitman's visa petition
was denied in Utah, and the “final agency action”
plaintiffs challenge with this Administrative Procedure Act
(“APA”) action-i.e., the Board of Immigration
Appeals' (“BIA”) denial of Mr. Pitman's
appeal of the USCIS' decision-came out of Virginia.
See ECF No. 1 at ¶15. In fact, this case's
only connection to Colorado is that plaintiffs have named Ms.
Barrows as a defendant. However, it does not appear that Ms.
Barrows played any direct or significant role in the events
of which Mr. Pitman complains, aside from generally
overseeing the district that contains the USCIS office that
initially denied Mr. Pitman's visa petition. See
District of Utah, by contrast, is the district in which
plaintiffs' claim arguably and admittedly
“arose” since that is the district in which Mr.
Pitman's petition was first denied. Seeid at ¶15 (“[T]he USCIS field office in
Salt Lake City [is] where the actions complained of
occurred.”). For this reason, other courts have held, a
plaintiffs suit should be transferred to and adjudicated in
that locale. See Bourdon, 2017 WL 635481, at *5
(recognizing that, because a plaintiffs claim challenging a
USCIS decision “arises” in the district in which
the USCIS office makes its decision, “[c]ases
challenging the actions ...