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MacKenzie v. Carson

United States District Court, N.D. Texas, Dallas Division

November 22, 2017

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

          MEMORANDUM OPINION AND ORDER

          DNEY A. FITZWATER UNITED STATES DISTRICT JUDGE

         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, the Rehabilitation 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 Defendants[3] and alleged that defendants violated the FHA, Title VI, § 504 of the Rehabilitation Act, and § 109 of HCRA[4] and deprived him of his constitutional right to due process. The HUD Defendants[5] 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 determination under 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 against unnecessary 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 transfer[7] 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 wishes of defendant, it is a district “where (the action) might have been brought.” If he does not have that right, independently of the wishes of defendant, it is not a district “where it might have been brought[.]”

Hoffman v. Blaski, 363 U.S. 335, 344 (1960) (emphasis added) (citation omitted); see also, e.g., Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1246 (5th Cir. 1983) (noting, in dicta, “[f]ollowing the ‘plain words' of [§ 1404(a)], the Supreme Court has prohibited transfers to alternative federal forums unless the suit ‘might have been brought' there at the time plaintiff filed his original suit.” (emphasis added) (quoting Hoffman, 363 U.S. at 342-43)); Am. Home Mortg. Servicing, Inc. v. Triad Guar. Ins. Corp., 714 F.Supp.2d 648, 652-53 (N.D. Tex. 2010) (Lynn, J.) (holding that transfer under § 1404(a) was not appropriate because “at the time this suit was filed, [plaintiff] could not have counterclaimed against [defendant] in the Delaware court, because [plaintiff] was not [yet] a defendant in that case.”).

         At the time this lawsuit was filed, MacKenzie was a resident of Texas, not South Carolina. Therefore, he had no right to file this lawsuit in the District of South Carolina. It is irrelevant that MacKenzie “might” have brought this lawsuit in the District of South Carolina had he been a resident of South Carolina in March, 2015. It is undisputed that he was not a South Carolina resident when he filed this lawsuit.

         Accordingly, because MacKenzie was not a resident of the District of South Carolina at the time this suit was filed, and he has not provided any other reason why venue would have been proper in the District of South Carolina, the court holds that the District of South Carolina is not a “district or division where [this lawsuit] might have been brought.” 28 U.S.C. § 1404(a). MacKenzie's motion under § 1404(a) to transfer this suit to the District of South Carolina is therefore denied.

         III

         The court now turns to the merits of the DOJ Defendants' motion to dismiss under Rule 12(b)(1) and (6) and the HUD Defendants' motion under Rule 12(c) for judgment on the pleadings. It starts by setting out the pertinent standards for deciding these motions.

         A

         “Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims.” Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). A Rule 12(b)(1) motion can mount either a facial or factual challenge. See, e.g., Hunter v. Branch Banking & Tr. Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it “looks only at the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny the motion.” Id. (citation omitted) (citing Paterson, 644 F.2d at 523). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam) (citations omitted).

         B.

         The standard for deciding a motion under Rule 12(c) is the same as the one for deciding a motion under Rule 12(b)(6). See, e.g., Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir. 2002) (“A number of courts have held that the standard to be applied in a Rule 12(c) motion is identical to that used in a Rule 12(b)(6) motion.” (citation and internal quotation marks omitted)). Under Rule 12(b)(6), the court evaluates the sufficiency of plaintiffs' second amended complaint “by accepting all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Bramlett v. Med. Protective Co. of Fort Wayne, Ind., 855 F.Supp.2d 615, 618 (N.D. Tex. 2012) (Fitzwater, C.J.) (brackets and internal quotation marks omitted) (quoting In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)). “The court's review [of a Rule 12(b)(6) motion] is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). To survive the HUD Defendants' motion, MacKenzie's second amended complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (brackets omitted) (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although “the pleading standard Rule 8 announces does not require ‘detailed factual allegations, '” it demands more than “‘labels and conclusions.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         IV

         The HUD Defendants move under Rule 12(c) for judgment on the pleadings as to MacKenzie's claim that the HUD Defendants ...


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