952 F. Supp. 455

SEARIVER MARITIME FINANCIAL HOLDINGS, INC., et al., Plaintiffs, v. Federico F. PEÑA, et al., Defendants.

Civil Action No. H-96-0722.

United States District Court, S.D. Texas, Houston Division.

Sept. 6, 1996.

*456Richard N. Carrell, Fulbright & Jaworski, Houston, TX, for plaintiffs Seariver Maritime Financial Holding, Inc., Seariver Maritime, Inc., Seariver Maritime, International.

David A. Bono, U.S. Department of Justice, Washington, DC, for defendants Federico F. Pena, the U.S. Department of Transportation, Janet Reno and U.S. Department of Justice.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Plaintiffs have brought suit seeking a declaratory judgment that Section 5007 of the Oil Pollution Act of 1990 (“the OPA”), 33 U.S.C. § 2737, is unconstitutional and contrary to United States treaties and international law, and ask the Court to enjoin permanently the enforcement of Section 5007 against Plaintiffs. First Amended Complaint for Declaratory and Injunctive Relief [Doc. #8] (“First Amended Complaint”). Plaintiffs invoke venue in this judicial district pursuant to 28 U.S.C. § 1391(e). The Government has filed a Rule 12(b)(3) Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1406(a) [Doc. # 9] (“Motion”), seeking dismissal or transfer for improper venue. The Court has considered the Motion, the numerous responses, replies, and surreplies, all other matters of record in this case, and the relevant authorities. For the reasons stated herein, the Government’s Motion is GRANT*457ED, and this action is DISMISSED WITHOUT PREJUDICE.

FACTUAL BACKGROUND

In 1990, Congress passed the OPA, of which Section 5007 provides: “Notwithstanding any other law, tank vessels that have spilled more than 1,000,000 gallons of oil into' the marine environment after March 22, 1989, are prohibited from operating on the navigable waters of Prince William Sound, Alaska.” 33 U.S.C. § 2737.

Plaintiffs own the S/R Mediterranean, formerly named the Exxon Valdez. Plaintiffs state that the Mediterranean was the only U.S. flag vessel to which Section 5007 applied at the time of passage in 1990, and that the statute “effectively bars the vessel from participating in any trade from Alaska to other U.S. ports, which was the original purpose in constructing the vessel.” Plaintiffs’ Response to Defendants’ Rule 12(b)(3) Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1406(a) [Doc. # 18] (“Plaintiffs’ Response”), at 2.

Section 5007 has not yet been enforced against Plaintiffs. The First Amended Complaint does not allege that the vessel has yet done anything to violate Section 5007’s prohibition against navigation in Prince William Sound, nor that any enforcement action has been taken or threatened against the vessel. Rather, the only allegation is that SeaRiver “wishes” to have the vessel sail through Prince William Sound so as to participate in Alaska North Slope trade, which was the purpose for the vessel’s construction. First Amended Complaint, ¶¶ 23,25.

Plaintiffs have presented evidence of the connection of this cause of action to Houston, including the following: the S/R Mediterranean is owned and operated by two Houston-based companies; all decisions regarding the ownership and operation of the vessel are made in Houston; the decision to construct the vessel was made in Houston; and the restrictions of Section 5007 have caused “significant losses” for the Plaintiff companies, based in Houston, who own and operate the vessel. Plaintiffs’ Response, at 2, 4; Affidavit of W.P. Rupp (Exhibit 1 to Plaintiffs’ Response), ¶¶2, 4r-5 and 7. . Plaintiffs also argue that there is no more “convenient” district to try this case, and that it is not burdensome on the Government to litigate in Houston. Plaintiffs’ Response, at 4.

The Government claims that “[t]he only district involved in these events is the District of Alaska, where the Exxon Valdez implicated Section 5007 by spilling approximately 11,000,000 gallons of oil, and also where that ship would have to operate before Section 5007 would be violated and could be enforced.” Memorandum of Law in Support of Defendants’ Rule 12(b)(3) Motion' to Dismiss for Improper Venue or, in the Alternative, to Transfer Pursuant to 28' U.S.C. § 1406(a) [Doc. # 10] (“Government’s Memorandum”), at l.1 The Government points out that the only past event identified by Plain-' tiffs is the Valdez spill, which occurred in Alaska. Id. at 20. The Government also argues that, to the extent future events would be relevant, they would necessarily have to occur in Alaska since Section 5007 bars navigation only in Prince William Sound. Id. at 23.

DISCUSSION

The applicable venue statute, 28 U.S.C. § 1391(e), provides that a civil' action in which the defendant is the federal gov,eminent may be brought (1) where the defendant resides, (2) where a “substantial part of the events or omissions giving rise to the claim occurred, or a- substantial part of the property that is the subject of the action is situated,” or (3) where the plaintiff resides if no real property is involved in the action.

Section 1406(a), 28 U.S.C., provides that “[t]he 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 *458interest of justice, transfer such case to any district or division in which it could have been brought.”

A. Is Venue Proper in the Southern District of Texas?

Plaintiffs argue that venue is appropriate under two provisions of Section 1391(e): because Plaintiffs reside in Houston, and because a “substantial part of the events or omissions giving rise to the claim occurred” in Houston.

1. Burden of Proof. — Once Defendants have raised a proper objection to venue in this judicial district, the Plaintiffs bear the burden of proof to establish that the venue they chose is proper. Smith v. Fortenberry, 903 F.Supp. 1018, 1019-20 (E.D.La.1995); French Transit, Ltd. v. Modern Coupon Systems, Inc., 858 F.Supp. 22, 25 (S.D.N.Y.1994).2 As another district court has noted, the burden should be on the plaintiff to institute an action in the proper place, because “[t]o hold otherwise would circumvent the purpose of the venue statutes — it would give plaintiffs an improper incentive to attempt to initiate actions in a forum favorable to them but improper as to venue.” Delta Air Lines, Inc. v. Western Conference of Teamsters Pension Trust Fund, 722 F.Supp. 725, 727 (N.D.Ga.1989).3

Therefore, Plaintiffs bear the burden to establish that the Southern District of Texas is an appropriate venue for this action.4

2. Residence of Plaintiff. — Several circuit courts, including the Fifth Circuit, have held that a plaintiff corporation resides in the place of its incorporation. Tenneco Oil Co. v. EPA, 592 F.2d 897, 899 (5th Cir. 1978); see also Johns-Manville v. U.S., 796 F.2d 372, 373 (10th Cir.1986); Rosenfeld v. S.F.C. Corp., 702 F.2d 282, 283 (1st Cir.1983) (Breyer, J.); Donnelley Corp. v. FTC, 580 F.2d 264, 268-70 (7th Cir.1978). Furthermore, these eases indicate that it is of no import to the venue question where corporations do their business or make business decisions. Johns-Manville v. U.S., 796 F.2d at 373; Rosenfeld, 702 F.2d at 283. Although Plaintiffs cite to several district court opinions holding that a residence of a corporate plaintiff includes the corporations’ principal place of business, as well as its state of incorporation,5 this authority, even if it were directly relevant, does not outweigh the binding authority directly supporting the Government’s position.

The Court holds that Plaintiffs’ residence is Delaware, the state of incorporation for all three Plaintiffs. Section 1391(e)(3) therefore provides no basis for venue in this judicial district.

3. Substantial Part of Events. — It is, of course, possible in a given case that there could be more than one district in which a “substantial part of the events ... giving rise to a claim occurred,” and therefore there could be more than one proper *459venue for a certain cause of action. Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.1995); Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir.1994); Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.1992). A court is not obliged to determine the “best” venue for a cause of action pending before it, but rather must determine only whether or not its venue is proper. Setco, 19 F.3d at 1281; Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.1994).6 Therefore, even if another district’s contacts with the controversy are more substantial than this district, the court need determine only whether substantial events occurred in this district.

The Government argues not that the connections with Alaska are “more substantial” than those with Texas, but rather that the only event giving rise to application of Section 5007 to Plaintiffs is the Alaskan oil spill, and therefore that none of the past events giving rise to Plaintiffs’ claims have occurred in the Southern District of Texas. Defendants’ Reply Regarding Venue [Doc. #20] (“Government’s Reply”), at 12. The Government argues farther that any future “events” involving possible violations of Section 5007 giving rise to Plaintiffs’ claim would take place in Alaska. Government’s Memorandum, at 15-16. Plaintiffs, however, argue that the effects of Section 5007 (which, at the time of passage, applied to only SeaRiver’s vessel) are felt in Houston, and that these local effects give rise to venue. The Court is not persuaded. The “effects” to which Plaintiffs refer are the injury resulting from Section 5007, rather than an “event giving rise to a claim” that could properly lay venue.

Plaintiffs further argue that, since this is a declaratory judgment action, the place of injury is relevant to the venue decision. Plaintiffs assert that jurisdictional principles of a party’s “standing” are relevant and that venue in a declaratory judgment action lies where Plaintiffs may suffer a direct injury from the operation of the statute. Plaintiffs’ Response, at 7-10.7 In particular, Plaintiffs assert, without citation, as follows:

[Standing principles, therefore, must guide the determination of venue. If the right to bring a constitutional declaratory judgment action depends on whether there is a “danger” of suffering a “direct injury” as a result of statute’s “operation,” then venue is logically found where that injury has already occurred and is occurring. Likewise, if standing principles do not require that a party “expose himself to actual arrest or prosecution” before bringing a declaratory judgment action, then it is flawed reasoning to argue that venue must only be where the party would be arrested. In short, the Government’s venue argument is at odds with the standing requirement for a constitutional declaratory judgment action.

Id. at 9.8

Plaintiffs accurately cite cases that hold that a realistic danger of direct injury' can *460confer standing on a party.9 However, these authorities do not provide any support for the argument that standing must or even should be considered as a factor in determining proper venue. Indeed, the Court’s authority for determining venue, Section 1391(e), makes no mention of standing, and Plaintiffs have directed the Court to no case construing Section 1391(e) in which standing was taken into consideration. Plaintiffs’ arguments as to standing are not probative on the venue issue. If Plaintiffs’ claims raise a genuine issue of standing, the question must be addressed by a court with proper venue.

Other courts, when determining proper venue for constitutional claims, have done so without addressing the standing issue. The Southern District of New York, in evaluating an action for declaratory judgment and injunctive relief concerning a New York state .regulation imposing compensatory payments on milk produced outside the state of New York, held that venue was proper in the Southern District of New York, where most of the milk in question was sold. Farmland Dairies v. McGuire, 771 F.Supp. 80, 81-82 (S.D.N.Y.1991). The Court stated that it was the “ ‘distribution’ of milk in the state of New York which trigger[ed] compensatory payments,” and therefore this distribution was a “substantial part of the events giving rise to the claim.” Id. The Court specifically rejected the defendant’s argument that a “substantial part of the events” was established by either the enactment in Albany of statutes and orders establishing the system of compensatory payments, or by the plaintiffs’ marketing and distribution decisions in other states. Similarly, this Court is not persuaded by Plaintiffs’ analogous arguments that venue may be laid in this district because their decisions concerning the vessel are made here.10

Events that have only a tangential connection with the dispute at bar are not sufficient to lay venue. Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.1994). Moreover, the Court is persuaded by the analysis of the Eighth Circuit, when it stated that, by referring to “events or omissions giving rise to the claim,” it is likely that “Congress meant to require courts to focus on relevant activities of the defendant, not of the plaintiff.” Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir.1995). The Woodke Court held that venue for a “passing off’ claim under Lanham Act lies where the alleged “passing off’ occurred, but does not lie in the district that is the “location of the ultimate effect of the passing off,” nor does it lie in district in which trailers, which were *461“passed off,” were manufactured. Id. The manufacture of the trailers, the Court explained, was not itself wrongful, and though the manufacture was connected to the dispute at bar, it did not give rise to the claim. Id. at 985-86. See also Smith v. Fortenberry, 903 F.Supp. 1018, 1020 (E.D.La.1995) (injurious accident, which occurred in Mississippi, was substantial event sufficient to confer venue for resulting personal injury action; venue was not proper in Louisiana merely because plaintiff had received medical treatment for his injuries there).

In the instant case, Plaintiffs’ decisions in Houston regarding the S/R Mediterrean and the harm felt in Houston by the vessel’s inability to sail to Prince William Sound also do not bear a sufficiently substantial connection to the events giving rise to Plaintiffs’ claims. Moreover, unlike the analysis under 28 U.S.C. § 1404(a), convenient access to witnesses and documents, even if assumed to weigh in favor of Plaintiffs, does not determine the place of substantial events so as to lay venue in this district. Cf. Americas Ins. Co. v. Engicon, Inc., 894 F.Supp. 1068, 1074 (S.D.Tex.1995).11

Therefore, the Court holds that a “substantial part of the events or omissions giving rise to the claim” did not occur in this judicial district, and that Section 1391(e)(2) does not provide. a basis for venue here.

B. Transfer Pursuant to 28 U.S.C. § 1406(a)

It appears that, while the Southern District of Texas is not an appropriate venue for litigation of this action, several other districts would be appropriate.

Of the possible venues, the Government has expressed a preference for the District of Alaska, where it appears that a substantial part of the events giving rise to Plaintiffs’ claim occurred. See 28 U.S.C. § 1391(e)(2). The Government argues that transfer to Alaska is in the interest of justice because Alaska has handled all litigation arising from the Valdez spill. The Government further argues that transfer to Alaska is compelled by a Consent Decree from two eases concerning the Exxon Valdez oil spill which are pending in the District of Alaska. Defendants’ Unopposed Motion for Leave to File Supplemental Authority Regarding Defendants’ Rule 12(b)(3) Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1406(a) [Doc. # 13] (“Government’s Supplemental Memorandum”), at 2-3; Government’s Reply, at 18-23.12

*462Plaintiffs prefer the District for the District of Columbia, which is Defendants’ residence. See 28 U.S.C. § 1391(e)(1). Plaintiffs argue that the District of Alaska has not heard any case concerning the constitutionality of Section 5007, nor of any other provision of the OPA, but merely on the damages and liability issues arising from the oil spill itself. Plaintiffs’ Constitutional Brief, at 9. The parties strenuously dispute, among other things, whether or not the Consent Decree’s forum selection clause is binding on the corporate Plaintiffs at bar, and whether or not any questions as to propér construction of the Consent Decree must be heard by the Alaska court. See supra note 12.

The Court is not in a position on this record to choose definitively between the parties’ desired fora. While the District of Columbia would appear to be an obvious choice in light of Plaintiffs’ challenge to the constitutionality of federal legislation, the issues of the application of the Consent Decree are not insubstantial. Moreover, since either venue appears to be proper, there must be analysis under 28 U.S.C. § 1404 by a court with venue over Plaintiffs’ claims.13

Plaintiffs should be given the opportunity to select the forum they prefer as between Alaska and the District of Columbia. The Court therefore declines to make the venue selection, and holds that it is not “in the interest of justice” to transfer this action to either judicial district. See 28 U.S.C. § 1406(a). • This action is dismissed without prejudice.

CONCLUSION

For the foregoing reasons, it is hereby

ORDERED that Defendants’ Rule 12(b)(3) Motion to Dismiss For Improper Venue or, in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1406(a) [Doc. # 9] is GRANTED. Plaintiffs complaint is DISMISSED WITHOUT PREJUDICE.

Seariver Maritime Financial Holdings, Inc. v. Peña
952 F. Supp. 455

Case Details

Name
Seariver Maritime Financial Holdings, Inc. v. Peña
Decision Date
Sep 6, 1996
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952 F. Supp. 455

Jurisdiction
United States

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