Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2648
BERT JOHN ALLEN, III,
Plaintiff, Appellant,
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES AFI-CIO, ET AL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judges.
Bert John Allen, III on brief pro se.
Mary T. Sullivan and Segal, Roitman & Coleman on brief for
appellees.
September 1, 2006
Per Curiam. Appellant challenges the district court's
dismissal of the complaint for lack of venue pursuant to Fed. R.
Civ. P. 12(b)(3). The venue statute, 28 U.S.C. § 1391, provides,
in pertinent part:
A civil action wherein jurisdiction is not
founded solely on diversity of citizenship
may, except as otherwise provided by law, be
brought only in (1) a judicial district where
any defendant resides, if all defendants
reside in the same State, (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,
or (3) a judicial district in which any
defendant may be found, if there is no
district in which the action may otherwise be
brought.
28 U.S.C. § 1391(b). Subsection (1) is inapplicable in this case,
since neither of the defendants can be deemed to reside in New
Hampshire.1 Thus, the question is whether "a substantial part of
the events . . . giving rise to the claim occurred" in New
Hampshire.2 Here, the only events with any connection at all to
New Hampshire are the allegations that individuals who are members
1
Appellant seems to argue that defendants should be deemed to
reside in New Hampshire under § 1391(c), which provides that, for
purposes of venue, corporate defendants are deemed to reside in any
district in which they are subject to personal jurisdiction when
the lawsuit is commenced. However, since neither defendant has any
offices, local unions, or bargaining unit employees in New
Hampshire, § 1391(c) is inapplicable.
2
"We turn to the third alternative only in the event that the
first two provisions fail to provide an appropriate forum." Uffner
v. La Reunion Francaise, S.A., 244 F.3d 38, 42 n.4 (1st Cir. 2001)
(discussing identical provisions of § 1391(a).)
of the defendant labor organizations engaged in a conspiracy to
trade postage stamps illegally for cash in order to finance "Muslim
gangs," and that they accomplished this in the course of
transporting prisoners between a Massachusetts prison and the
Manchester, New Hampshire airport. This allegation fails to
establish a substantial connection with New Hampshire because most,
if not all, of the other events described in the complaint concern
rapes and other abuses appellant claims to have suffered during his
incarceration in Massachusetts and Pennsylvania.
Liberally construing appellant's pro se brief, he also
appears to suggest that, if venue is not proper in New Hampshire,
then the case should be transferred to Massachusetts under 28
U.S.C. § 1404(a). However, appellant failed to request this relief
below, and it is not properly sought for the first time on appeal.
See Singleton v. Wulff, 428 U.S. 106, 121 (1976). We have reviewed
appellant's remaining arguments and find them to be without merit.
Affirmed. See 1st Cir. Loc. R. 27(c).
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