Fuanya v. United States

ACHELEKE FUANYA, Plaintiff, v. UNITED STATES, Defendant.

Civil Action No. 21-cv-02191-REB-NYW

United States District Court, D. Colorado

April 6, 2022

ORDER DENYING DEFENDANT'S MOTION TO TRANSFER VENUE OR, IN THE ALTERNATIVE, TO DISMISS FOR IMPROPER VENUE

Robert E. Blackburn, United States District Judge.

The matter before me is Defendant's Motion To Transfer Venue or, in the Alterative, To Dismiss for Improper Venue [#21], ^[1] filed November 30, 2021. I deny the motion.

I. JURISDICTION

I have subject matter jurisdiction of this matter pursuant to 28 U.S.C. §1346(b) (Federal Tort Claims Act).

II. STANDARD OF REVIEW

A motion to dismiss for improper venue under Rule 12(b)(3) is analyzed under the same standards governing a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2). H & H Transformer, Inc. v. Battelle Energy Alliance, LLC, 2009 WL 3530370 at *3 (D. Colo. Oct. 23, 2009). Accordingly, the allegations of the complaint are accepted as true to the extent they are uncontroverted, and any factual disputes are to be resolved in favor of the plaintiff.^[2] Hancock v. AT & T Co., 701 F.3d 1248, 1260 (10^th Cir. 2012), cert. denied, 133 S.Ct. 2009 (2013); Wenz v. Memmery Crystal, 55 F.3d 1503, 1505 (10^th Cir. 1995). Once the plaintiff makes a prime facie showing that venue is proper in the chosen district, Scott v. Buckner Co., 388 F.Supp.3d 1320, 1324 (D. Colo. 2019), that “showing is sufficient notwithstanding the contrary presentation by the moving party, ” Behagen v. Amateur Basketball Association, 744 F.3d 731, 733 (10^th Cir. 1984).

“[D]etermination of proper venue does not require the court to choose the best venue or determine which forum has the most, or most significant, contacts with plaintiff's claims.” Scott, 388 F.Supp.3d at 1324 (citation and internal quotation marks omitted). “[U]nless the balance is strongly in favor of the [defendant], the plaintiff's choice of forum should rarely be disturbed.” Scheidt v. Klein, 956 F.2d 963, 965 (10^thCir. 1992)). Where venue in the filing district is found to be improper, the court “shall dismiss, or if it be in the interest of justice, transfer such a case” to a district in which venue properly lies. 28 U.S.C. § 1406(a). The decision whether to dismiss or transfer the case is committed to the court's sound discretion. Keaveney v. Larimer, 2000 WL 1853994 at *1 (10^th Cir. Dec. 19, 2000).

Alternatively, section 1404(a) contemplates that “[f]or the convenience of the 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.” 28 U.S.C. § 1404(a). The district court is vested with considerable discretion in determining whether transfer is appropriate under this section. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10^th Cir. 1991). The movant bears the burden of establishing that the existing forum is sufficiently inconvenient to warrant transfer. Id. This is a heavy burden, Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 148 (10^th Cir. 1967), “and unless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed, ” Scheidt, 956 F.2d at 965. See also Cargill Inc. v. Prudential Insurance Co. of America, 920 F.Supp. 144, 146 (D. Colo. 1996).

III. ANALYSIS

Plaintiff, Acheleke Fuanya, a citizen of Cameroon, fled that country in 2019, seeking political asylum in this country. After presenting himself to U.S. Customs and Border Protection (“CBP”) at the port of entry at San Ysidro, Mr. Fuanya was transferred to the custody of Immigration and Customs Enforcement (“ICE”) at the Winfield Correctional Center in Louisiana. Mr. Fuanya claims that while there, on January 14, 2021, five ICE officials assaulted him after he declined to affix his signature and fingerprint to a document without first consulting his attorney. He alleges he continues to suffer severe pain from injuries sustained during the attack and has been diagnosed with post-traumatic stress disorder related to the incident. In addition, he contends he contracted COVID-19 from the unmasked ICE officials, from which he continues to suffer lingering symptoms.

Mr. Fuanya was released subsequently from ICE custody and went to live with his sister and brother-in-law in Colorado Springs, Colorado. He received an employment authorization from the Department of Homeland Security (“DHS”) on October 7, 2021, and a social security number and card the following day, and has been working since November 2021. (Resp. App., Exh. 1 ¶¶ 5-6 at 1; see also id., Exhs. 2 & 3.) Mr. Fuanya's application for asylum was denied both initially and by the Board of Immigration Appeals and is now pending before the United States Court of Appeals for Fifth Circuit.

By this suit, Mr. Fuanya brings claims against the government under Louisiana law pursuant to the Federal Tort Claims Act (“FTCA”) for battery, intentional infliction of emotional distress, and negligence. The government moves to dismiss for improper venue, or alternatively to transfer the case to the Western District of Louisiana. As have the majority of courts which have considered similar arguments directly, I reject the government's argument that the only proper venue in this case is where this incident occurred because, as an alien not yet granted asylum or some other permanent status, Ms. Fuanya cannot claim to reside in Colorado. I also decline the government's invitation to transfer this case under section 1404(a).

To begin, the motion implicates the venue provisions of the FTCA, which provides, relevantly, that “[a]ny civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C.A. § 1402(b). As all the acts implicated by this lawsuit plainly occurred in Louisiana, the pivotal question is whether Mr. Fuanya resides in Colorado.

While section 1402(b) itself does not define “residence, ” the general venue statute does, and courts have looked to this statute in interpreting the venue provision of the FTCA. See 14D Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 3814 & n.17 (4^th ed.); Alvarado v. United States, 2017 WL 2303758 at *2 (D.N.J. May 25, 2017). See also Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S.Ct. 2589, 2596 120 L.Ed.2d 379 (1992) (noting the “basic canon of statutory construction that identical terms within an Act bear the same meaning”). Under that statute, “a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled.” 28 U.S.C. § 1391(c)(1). “[D]omicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989). See also Keys Youth Services, Inc. v. City of Olathe, Kansas, 248 F.3d 1267, 1272 (10^th Cir. 2001).

At first blush, the venue analysis would seem quite straightforward: if Mr. Fuanya, clearly a “natural person, ” can establish he is domiciled in Colorado - that is, that he has an intent to remain here - venue would lie in this district. Nevertheless, the government insists the statute must be read more narrowly in light of its historical interpretation.

This argument begins by noting that prior to 2011, section 1391(c)(1), did not include the proviso “including an alien lawfully admitted for permanent residence in the United States, ” and had been interpreted “to deny venue to aliens, holding that for purposes of venue, aliens are not residents of any district despite where they might live.” See Arevalo-Franco v. U.S. Immigration and Naturalization Service, 889 F.2d 589, 590 (5^th Cir. 1989) (citing Galveston H. & S.A.R. Co. v. Gonzales, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248 (1894), and Williams v. United States, 704 F.2d 1222, 1225 (11^th Cir.1983)).^[3] Congress subsequently added the clause “including an alien lawfully admitted for permanent residence in the United States” to section 1391(c)(1) as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat.758 (Dec. 7, 2011). Pointing to the principle that Congress is presumed to legislate in light of existing precedents, see Board of County Commissioners, Fremont County, Colorado v. United States Equal Employment Opportunity Commission, 405 F.3d 840, 845 (10^th Cir. 2005), the government posits that the phrase “including an alien lawfully admitted for permanent residence in the United States” was intended to limit the class of possible alien domiciliaries to only legal permanent residents.

The overwhelming majority of federal district courts which have considered the question directly ultimately have rejected this argument, albeit on divergent grounds.^[4]Some have relied on the plain language of the statute. See Alvarado, 2017 WL 2303758 at *2; Flores v. United States, 108 F.Supp.3d 126, 131 (E.D.N.Y. 2015).

Others have concluded the statute is sufficiently ambiguous to warrant an excursion into the legislative history. Coyoy v. United States, 526 F.Supp.3d 30, 35-36 (D.N.J. 2021); Luna v. United States, 2021 WL 673534 at *1-2 (W.D. Wash. Feb. 22, 2021). Under either line of reasoning, these courts have reached the same conclusion: in amending the general venue statute, Congress intended to extend venue to any alien who can establish he has an intent to remain in this country which is lawful under immigration law. I agree.

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