Mackenzie v. Carson, Civil Action No. 3:15-CV-0752-D

CRAIG STEVEN MacKENZIE, Plaintiff, v. BEN CARSON, SECRETARY, U.S. HOUSING & URBAN DEVELOPMENT, et al., Defendants.

Civil Action No. 3:15-CV-0752-D

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

November 22, 2017

MEMORANDUM OPINION AND ORDER

Following the dismissal of pro se plaintiff Craig Steven MacKenzie's ("MacKenzie's") claims alleging violations of the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3601-3619; Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d; § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794; and § 109 of the Housing and Community Redevelopment Act of 1974 ("HCRA"), 42 U.S.C. § 5309, defendants U.S. Department of Housing and Urban Development ("HUD") and HUD Secretary Ben Carson ("Secretary Carson") (collectively, "the HUD Defendants") move under Fed. R. Civ. P. 12(c) for judgment on the pleadings on MacKenzie's remaining due process claim asserted against them, and defendants U.S. Department of Justice ("DOJ") and Attorney General Jeff Sessions ("General Sessions") (collectively, "the DOJ Defendants") move under Rules 12(b)(1) and (6) to dismiss all the claims asserted against them. MacKenzie opposes both motions, requests leave to file a third amended complaint, and moves to transfer this case to the District of South Carolina. For the following reasons, the court grants the HUD Defendants' Rule 12(c) motion, grants the DOJ Defendants' Rule 12(b)(1) motion, and denies MacKenzie's motion to transfer and motion for leave to file an amended complaint. In light of these rulings, the court denies as moot MacKenzie's objections to the magistrate judge's May 19, 2017 order and his motion to strike the HUD Defendants' response to his objections.¹ The court dismisses this action with prejudice as to the HUD Defendants and without prejudice as to the DOJ Defendants by judgment filed today.

I

Because this case is the subject of two prior memorandum opinions and orders, see MacKenzie v. Castro, 2017 WL 1021299 (N.D. Tex. Mar. 16, 2017) (Fitzwater, J.) ("MacKenzie II"); MacKenzie v. Castro, 2016 WL 3906084 (N.D. Tex. July 19, 2016) (Fitzwater, J.) ("MacKenzie I"), the court will recount only the background facts and procedural history necessary to understand the present decision.

In 2010 an entity named 1600 Pacific Building, LP ("1600 Pacific") filed a housing discrimination complaint ("HUD Complaint") alleging that the City of Dallas (the "City") had thwarted 1600 Pacific's efforts to redevelop an office building into a large affordable housing project. 1600 Pacific complained that the City had violated the FHA, Title VI, theRehabilitation Act, and the HCRA. In investigating the HUD Complaint, HUD opened four case files—one for each of the four statutes that 1600 Pacific claimed the City had violated. While the matter was pending before HUD, 1600 Pacific withdrew its FHA complaint and HUD closed the file. After HUD completed its investigation, it issued a "Letter of Findings of Non-Compliance" ("Non-Compliance Letter"), concluding that the City was not in compliance with Title VI, the Rehabilitation Act, or HCRA. Thereafter, HUD and the City engaged in conciliation and entered into a "Voluntary Compliance Agreement" ("VCA") that addressed the City's alleged violations of Title VI, the Rehabilitation Act, and HCRA. MacKenzie did not participate in the conciliation and was not a signatory to the VCA. As for the City's alleged violation of the FHA, the VCA stated that 1600 Pacific had withdrawn its complaint and that HUD had closed its case.

MacKenzie later filed this lawsuit against the HUD Defendants,² alleging violations of various provisions of the FHA and of his constitutional due process rights. The HUD Defendants moved to dismiss, and the magistrate judge to whom the motion was referred recommended dismissal. This court, however, declined to adopt the magistrate judge's findings, conclusions, and recommendation, and instead permitted MacKenzie "one last, fair opportunity to plead his best case." MacKenzie II, 2017 WL 1021299, at *1 n.1 (citing Dec.16, 2015 Order at 2). MacKenzie then filed his first amended complaint. The HUD Defendants moved to dismiss the first amended complaint under Rule 12(b)(1), but the court denied the motion. MacKenzie I, 2016 WL 3906084, at *4.

With leave of court, MacKenzie then filed a second amended complaint that added as parties the DOJ Defendants³ and alleged that defendants violated the FHA, Title VI, § 504 of the Rehabilitation Act, and § 109 of HCRA⁴ and deprived him of his constitutional right to due process. The HUD Defendants⁵ moved to dismiss MacKenzie's second amended complaint under Rule 12(b)(6) on the ground that MacKenzie had failed to state a claim under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706. MacKenzie II, 2017 WL 1021299, at *2. The court treated the HUD Defendants' motion, in part, as if it had been filed under Rule 12(b)(1), and dismissed for lack of subject matter jurisdiction MacKenzie's claim based on HUD's closure of the FHA complaint investigation, MacKenzie II, 2017 WL 1021299, at *5-8, HUD's failure to make a reasonable cause determinationunder the FHA, id. at *8-9, and the various other alleged violations of the FHA and regulations, id. at *11. To the extent MacKenzie's claims were based on HUD's entering into the VCA, the court concluded that although it had subject matter jurisdiction to review HUD's conduct, MacKenzie had nonetheless failed to plead a claim on which relief could be granted, and thus these claims were subject to dismissal under Rule 12(b)(6). Id. at *11-12. Because the HUD Defendants did not move to dismiss MacKenzie's due process claim, the court noted that the claim remained for adjudication. Id. at *12.

After the court decided MacKenzie II, MacKenzie served the DOJ Defendants with process. The DOJ Defendants now move to dismiss MacKenzie's second amended complaint under Rules 12(b)(1) and 12(b)(6), and the HUD Defendants move under Rule 12(c) for judgment on the pleadings with respect to MacKenzie's due process claim (the only claim remaining against them). MacKenzie opposes both motions. He also moves for leave to file a third amended complaint and to transfer this case to the District of South Carolina.

II

The court begins with MacKenzie's motion to transfer venue under 28 U.S.C. § 1404(a).

A

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." "The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public againstunnecessary inconvenience and expense." Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F.Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.) (citing Stabler v. N.Y. Times Co., 569 F.Supp. 1131, 1137 (S.D. Tex. 1983)). "The court cannot transfer a case where the result is merely to shift the inconvenience of the venue from one party to the other." Sivertson v. Clinton, 2011 WL 4100958, at *3 (N.D. Tex. Sept. 14, 2011) (Fitzwater, C.J.) (citing Fowler v. Broussard, 2001 WL 184237, at *6 (N.D. Tex. Jan. 22, 2001) (Fitzwater, J.)).

The court must decide as a preliminary question "whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed." In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (per curiam) ("Volkswagen I" ); see also In re Volkswagen of Am., Inc., 545 F.3d 304, 312 (5th Cir. 2008) (en banc) ("Volkswagen II") ("The preliminary question under § 1404(a) is whether a civil action 'might have been brought' in the destination venue."). Once the court resolves this issue, the court must in deciding whether to transfer the case evaluate "a number of private and public interest factors, none of which are given dispositive weight."⁶ Volkswagen I, 371 F.3d at 203(citing Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004)). The party seeking transfer⁷ must establish "good cause" for transferring the case, meaning that, "in order to support [a] claim for a transfer, [he] must satisfy the statutory requirements and clearly demonstrate that a transfer is '[f]or the convenience of parties and witnesses, in the interest of justice.'" Volkswagen II, 545 F.3d at 315 (quoting § 1404(a)) (final brackets in original).

B

The court begins its analysis by considering whether the District of South Carolina is a district in which MacKenzie could have filed his claims. Volkswagen I, 371 F.3d at 203. It concludes that it is not.

Because defendants are government agencies and officers, venue in this case is governed by 28 U.S.C. § 1391(e)(1), which provides, in pertinent part:

[a] civil action in which a defendant is an officer or employee of the United States . . . or an agency of the United States . . . may . . . be brought in any judicial district in which (A) a defendant in the action resides, (B) 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 (C) the plaintiff resides if no real property is involved in the action.

28 U.S.C. § 1391(e)(1). MacKenzie concedes that all of the defendants "reside" in Washington, D.C., and does not contend that any of the events giving rise to this lawsuit occurred in South Carolina. Instead, he argues that under § 1391(e)(1)(C), venue is proper in the District of South Carolina because "he 'might' have brought the case in the U.S. District of South Carolina had he been a resident of South Carolina in March, 2015." P. 7/6/17 Reply 3.

In addressing the "might have been brought" requirement of § 1404(a), however, the Supreme Court has clearly explained:

[i]f when a suit is commenced, plaintiff has a right to sue in that district, independently of the

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