FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 26, 2007
FO R TH E TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
DA NIEL E. W ITTE,
Plaintiff-Appellant,
v. No. 06-4297
(D.C. No. 2:05-CV-1046-TC)
SH ELDON SLOAN, * in his official (D. Utah)
capacity with the C alifornia State Bar;
RONALD M . GEORGE, Chief Justice,
in his official capacity with the
Supreme Court of California,
Defendants-Appellees.
OR D ER AND JUDGM ENT **
Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.
*
On October 7, 2006, Sheldon Sloan became the President of the California
Bar. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, M r. Sloan is substituted for Jim Heiting as the defendant-appellee in
this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Daniel E. W itte, an attorney representing himself pro se, appeals from the
district court’s decision dismissing his civil-rights complaint for improper venue
and declining to transfer the complaint to a district where venue is proper.
M r. W itte also challenges the denial of his requests to hold an evidentiary hearing
and to permit him to conduct limited discovery, amend his complaint, and
substitute parties. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. B ACKGR OU N D
M r. Witte w as admitted to practice law in California in January 2001. He
was suspended by the California State Bar on September 16, 2003, for failure to
pay his annual membership fee. On October 31, 2003, he paid the outstanding
amount and was reinstated to full active membership. He sought review of the
suspension with the California Supreme Court, but his petition was denied on
December 22, 2004.
On December 16, 2005, M r. W itte filed an action under 42 U.S.C. § 1983 in
the United States D istrict Court for the District of Utah against Jim Heiting, in his
official capacity as President of the California State Bar, and Ronald George, in
his official capacity as Chief Justice of the California Supreme Court, for alleged
violations of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the
United States Constitution. The complaint sought declaratory and injunctive
relief, alleging that it was
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not requesting that this Federal District Court review or overturn any
past final judgment of any state court . . . but . . . instead [was]
challenging the general ongoing schem e of practices, custom s,
regulations, procedures, and rules prom ulgated in non-judicial
settings by the Bar and by the Court . . . which continue to place
[M r. W itte] and many members of the Bar in ongoing jeopardy.
R. Vol. I, Doc. 1 at 21–22.
M r. Heiting and Chief Justice George filed motions to dismiss or transfer
venue. The district court concluded that venue was improper under 28 U.S.C.
§ 1391(b) and declined to exercise its discretion to transfer the case to the
Northern District of California under 28 U.S.C. § 1406(a). M r. W itte filed a
motion to reconsider, w hich the court denied. This appeal followed.
II. D ISC USSIO N
W e review de novo the district court’s decision to dismiss for improper
venue, and we review for abuse of discretion the district court’s decision not to
transfer the case to another venue. See Ballesteros v. Ashcroft, 452 F.3d 1153,
1160 (10th Cir. 2006) (“In civil cases, the question of whether a litigant has
brought an action in the proper court is a question of law, while the question of
whether to dismiss or transfer an action filed in an improper venue is within the
district court’s sound discretion.” (internal quotation marks omitted)). W e also
review for abuse of discretion the denial of M r. W itte’s requests for an
evidentiary hearing, see Robinson v. City of Edmond, 160 F.3d 1275, 1286 (10th
Cir. 1998); for limited discovery, see Bell Helicopter Textron, Inc. v. Heliqwest
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Int’l, Ltd., 385 F.3d 1291, 1298–99 (10th Cir. 2004) (jurisdictional discovery);
and for leave to amend a complaint, see TV Commc’ns Network, Inc. v. Turner
Network Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992).
A. Venue
The relevant portion of the venue provision states:
A civil action wherein jurisdiction is not founded solely on diversity
of citizenship may, except as otherwise provided by law, be brought
only in . . . (2) a judicial district in which 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 . . . .
28 U.S.C. § 1391(b). The district court concluded that M r. W itte had not met the
venue standard because all material events took place in California. M r. W itte
argues that the court committed errors of law and fact in making this
determination. W e reject his argument, however, because his opening brief fails
to cite to any support in the record.
Federal Rule of Appellate Procedure 28(a)(7) requires that an appellant’s
brief contain “a statement of facts relevant to the issues submitted for review with
appropriate references to the record.” The section of M r. W itte’s opening brief
devoted to background facts does not contain any record citations. See Aplt. Br.
at 8–15. Apparently in response to the statements in appellees’ briefs that he had
failed to comply with Rule 28(a)(7), M r. W itte’s reply brief asserts: “As W itte
noted, e.g., W B 4, 7, all material for background facts and theories was contained,
inter alia, in DN 1.” Reply Br. at 1 (“W B” refers to M r. W itte’s opening brief;
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“D N 1” refers to Docket Number 1, the complaint). But nothing on pages 4 or 7
of his opening brief contains an adequate reference to the record. The reference
to “DN 1” on page 4 of his opening brief, in the Statement of the Case section, is
in the following sentence:
[M r. W itte] filed this federal lawsuit, DN 1, contending that
Appellees’ ongoing coercive extraterritorial regulation and
assessment (including other tactics described below) A) creates an
undue burden and imposes inconsistent regulation and other “harmful
effects” upon Appellant’s practice of law in Utah, B) is a violation of
the Dormant Commerce Clause of the United States Constitution, and
C) constitutes one or more inherent “substantial event(s)” in Utah (or
an adequate part of the same) for purposes of supporting venue.
Aplt. Br. at 4–5. This one general citation to M r. W itte’s 37-page complaint
points to no specific facts and is hardly the page-specific reference required by
Fed. R. App. P. 28(e). As for the page 7 citation to the record, it is merely a
citation to ¶ 20 of his complaint, which he cites for the proposition that he “is not
seeking retroactive relief against either named A ppellee or the overturning of any
past judgment of suspension.” Aplt. Br. at 7.
M r. W itte’s argument section is similarly deficient. Rule 28(a)(9) requires
that the appellant’s opening brief contain “appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
appellant relies.” Fed. R. App. P. 28(a)(9). M r. W itte’s eight pages of argument
on venue contain four record citations, but none refers to facts relating to venue:
one is in a footnote that states what facts he is “not basing his claims” on, Aplt.
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Br. at 33 n.36, and the other three are references to the district court’s legal
analysis in its rulings, see id. at 32, 37.
Because M r. W itte’s opening brief fails to cite to any record support for his
contention that the district court erred in dismissing his complaint for improper
venue, we decline to consider his argument; w e will not do his work for him. See
Garrett v. Selby Connor M addux & Janer, 425 F.3d 836, 840–841 (10th Cir.
2005); SEC v. Thom as, 965 F.2d 825, 826–827 (10th Cir. 1992); Sil-Flo, Inc. v.
SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990).
B. Request to Transfer Case to the Northern District of C alifornia
M r. W itte argues that the district court abused its discretion by dismissing
his case rather than transferring it to the Northern District of California. The
district court ruled that “M r. W itte’s suggested reasons for transfer instead of
dismissal, including hypothetical and speculative statute of limitations issues, do
not support transfer in the interest of justice.” R. Vol. III, Doc. 66 at 2. In
support of his position M r. W itte, citing Goldlawr, Inc. v. Heiman, 369 U.S. 463
(1962), asserts that the Supreme Court favors transfer under 28 U.S.C. § 1406(a)
rather than dismissal in “situations where venue has been found improper on the
basis of closely-contested or unexpected factual findings related to proper
jurisdiction and/or venue.” A plt. Br. at 39–40. But Goldlawr’s concern was the
prejudice that a plaintiff could suffer— say, by expiration of the limitations
period– if a case were dismissed rather than transferred because of improper
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venue. See 369 U.S. at 466–67. Although M r. W itte complains about the
financial burden of a second filing fee and having to redraft pleadings, these are
not the severe burdens that motivated the enactment of § 1406(a). And on appeal
he does not suggest that his claims for declaratory and injunctive relief would be
barred by any statute of limitations. M r. W itte has not shown that the district
court abused its discretion in dismissing, rather than transferring, his case.
C. Request for a Hearing
M r. W itte challenges the district court’s refusal to hold any hearings in his
case, including any hearing concerning venue. Although he acknowledges that w e
review the district court’s decision for abuse of discretion, he asserts that the
district court’s failure to hold a hearing on venue “directly defied this Court’s
clear instruction” in Hustler M agazine v. U.S. District Court, 790 F.2d 69
(10th Cir. 1986). Aplt. Br. at 25. He claims that “[u]nder Hustler M ag[azine], a
disputed question of venue cannot be decided ‘on the briefs’ at the trial level
without an adequate hearing.” Id. M r. W itte’s characterization of our Hustler
decision is not accurate. W e ordered a hearing in Hustler because the district
court had wholly failed to consider the merits of the motion to transfer venue to
California. See 790 F.2d at 70–71. The district court had decided that it had
jurisdiction and it should not transfer its “problems” to another district. Id. at 70.
W e did not say that a decision regarding transfer can never be based on the
pleadings without a hearing. M r. W itte has not demonstrated that the district
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court abused its discretion by failing to hold a hearing.
D. Request for Discovery
M r. W itte argues that the district court abused its discretion in denying his
request for limited discovery related to jurisdiction and venue. He asserts that the
denial of discovery precluded, among other things, his ability to gather
information about “the nature and extent of the contacts/events between Appellees
and Appellant to help substantiate specific personal jurisdiction and venue.”
Aplt. Br. at 26–27. He claims that “[w]hen limited discovery is needed to
properly resolve a preliminary procedural issue (e.g. jurisdiction, venue . . .) but
the trial court denies leave for such discovery, an abuse of discretion has
occurred.” Id. at 27 n.20.
Because the district court dismissed the complaint for improper venue, not
lack of personal jurisdiction, we need not consider w hether the court erred in
denying jurisdictional discovery. As for venue, it is unclear w hether M r. W itte
ever sought discovery relating to venue; and before the court ruled, he failed to
alert it that he needed discovery regarding venue. M r. W itte’s request for
discovery is styled as a “M otion for Order Authorizing Limited Jurisdictional
Discovery.” R. Vol. I, Doc. 31 at 1. W e recognize that the body of the motion
twice refers to discovery regarding “jurisdiction and/or venue.” Id. at 2. But the
heading of the attached proposed discovery requests is “Summary of Some Key
Fact Questions Directly Implicated by Soma M edical Intern. v. Standard
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Chartered Bank, 196 F.3d 1292 (10th Cir. 1999), and to be Asked of Defendants,”
id. at A-1; and Som a did not involve a challenge to venue but only personal
jurisdiction, see 196 F.3d at 1294. W hen the appellees responded to the motion,
they treated it solely as a request for jurisdictional discovery and did
not discuss venue. Yet M r. W itte’s reply did not argue that he was also
requesting discovery for venue. M oreover, in his response to the appellees’
motions to dismiss, nowhere does he assert that he needs additional discovery on
venue before the court rules on the motions. Consequently, when the district
court ruled on the motions to dismiss, it had no reason to think that additional
discovery on venue was desired. M r. W itte has failed to show that the district
court abused its discretion in ruling on venue without permitting further
discovery.
M r. W itte did argue in his motion to reconsider that the district court had
erred in dismissing the case for lack of venue without allowing additional
discovery. See R. Vol. IV, Doc. 75 at 7 n.14. But on appeal he does not argue
why the court should have granted a request for venue discovery that he had not
made before the court’s ruling; and we see no abuse of discretion in the district
court’s refusal to reopen discovery at that point in the proceedings.
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E. Leave to Am end Complaint
M r. W itte argues that the district court abused its discretion by denying his
motion to amend his complaint. But because the appellees never filed an answer
to his original complaint, he had an absolute right to file an amended complaint
and did not need permission from the district court. See Fed. R. Civ. P. 15(a).
M oreover, he never submitted a proposed amended complaint to the district court.
M r. W itte has not shown that he suffered any prejudice from the district court’s
denial of his motion to amend his complaint.
F. Request to Substitute a Party
M r. W itte asserts that the district court abused its discretion by denying his
request to substitute incoming Bar President Sheldon Sloan for outgoing Bar
President Jim Heiting. The district court dismissed M r. W itte’s case on
October 4, 2006, and M r. W itte filed his motion for substitution on October 13.
The district court denied the motion as moot. Under Federal Rule of Civil
Procedure 25(d)(1), M r. Sloan should have been automatically substituted for
M r. Heiting. M r. W itte, however, has not demonstrated that he was prejudiced by
the district court’s action. This court will make the appropriate substitution under
Fed. R. App. P. 43(c)(2).
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The judgment of the district court is AFFIRM ED. The motion of the
Sutherland Institute for leave to file a brief as amicus curiae in support of
appellant is DENIED. M r. W itte’s M otion to Correct or M odify the Record, or to
A mend the C omplaint is D EN IED.
Entered for the Court
Harris L Hartz
Circuit Judge
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Witte v. Heiting
Combined Opinion