NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2081
___________
ROSS A. FIORANI, STATES ATTORNEY GENERALS IN: CA,
OH, PA, MD, WVA, DE, NJ, NY TN NC, SC AND FL,
v.
CHRYSLER GROUP; DODGE CORP; TD FINANCIAL
GROUP, LLC; ALLY FINANCIAL SERVICES
ROSS A. FIORANI,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:12-cv-00416)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 3, 2013
Before: SLOVITER, GREENAWAY, JR., and BARRY, Circuit Judges
(Opinion filed: January 17, 2013)
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OPINION
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PER CURIAM
Ross A. Fiorani, proceeding pro se and in forma pauperis, appeals from an order
of the United States District Court for the Middle District of Pennsylvania sua sponte
dismissing his complaint with prejudice for lack of venue as well as for being frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(1). For the following reasons, we will vacate the
District Court’s dismissal order and remand for further proceedings.
I.
Because we write primarily for the parties, we need only recite the facts necessary
for our discussion. In April 2010, Fiorani, a frequent litigator in federal court, filed a pro
se complaint against the Chrysler-Dodge Corporation, alleging various violations of the
Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-68,
along with other federal and state law violations. (Fiorani v. Chrysler-Dodge Corp.,
M.D. Pa. Civ. No. 1:10-cv-00880.) On August 9, 2010, a Magistrate Judge
recommended that Fiorani’s complaint be transferred to the United States District Court
for the Eastern District of Virginia because a substantial number of the events giving rise
to his claims had occurred within that district. The Magistrate Judge also recommended
that Fiorani’s motion to proceed in forma pauperis be held in abeyance to be reviewed by
the Eastern District of Virginia. On August 30, 2010, the District Court adopted the
Magistrate Judge’s recommendation and ordered that Fiorani’s case be transferred to the
Eastern District of Virginia.1
1
The United States District Court for the Eastern District of Virginia subsequently denied
Fiorani’s motion to proceed in forma pauperis and dismissed his complaint pursuant to 28
2
On March 6, 2012, Fiorani filed a pro se complaint against the Chrysler Group,
Dodge Corporation, TD Financial Group, and Ally Financial Services, alleging violations
of RICO as well as various other federal and state laws. Fiorani’s complaint alleged that
Appellees were participating in a conspiracy to force all potential purchasers of Chrysler-
Dodge vehicles to obtain financing through the defendant financial institutions. Fiorani
further alleged that he was prevented from purchasing a Dodge Charger R/T despite a
contract he allegedly had entered into with Chrysler-Dodge and Chrysler-Financial which
authorized prearranged and pre-approved credit for the purchase. On March 16, 2012, a
Magistrate Judge recommended that Fiorani’s complaint be dismissed with prejudice. On
April 5, 2012, the District Court adopted the Magistrate Judge’s recommendation and
dismissed Fiorani’s complaint with prejudice on the grounds that (1) the Middle District
of Pennsylvania was an improper venue and (2) it was frivolous because the District
Court had previously advised Fiorani that the Middle District of Pennsylvania was not a
proper venue.
Fiorani timely filed this appeal. The Clerk notified him that his appeal would be
submitted to the Court for possible summary action under 3d Cir. L.A.R. 27.4 and I.O.P.
10.6. However, the Clerk later issued a briefing schedule and directed the parties to brief
whether the District Court erred in sua sponte dismissing Fiorani’s complaint with
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. (Fiorani v. Chrysler-Dodge Corp.,
E.D. Va. Civ. No. 1:10-cv-00989, Docket #15.)
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prejudice because of improper venue, and whether improper venue is a proper ground for
finding a complaint frivolous under 28 U.S.C. § 1915(e).
II.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District
Court’s dismissal of the complaint as frivolous is for abuse of discretion, see Denton v.
Hernandez, 504 U.S. 25, 33-34 (1992), but we exercise plenary review over its
application of law, see Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). A
claim is frivolous if “the claim is of little or no weight, value or importance, not worthy
of serious consideration, or trivial.” Deutsch, 67 F.3d at 1089. Improper sua sponte
dismissals for venue are reviewed for harmless error. See Buchanan v. Manley, 145 F.3d
386, 388 (D.C. Cir. 1998).
III.
Under RICO, venue lies “in the district court . . . for any district in which [any
defendant] resides, is found, has an agent, or transacts his affairs.” 18 U.S.C. § 1965(a).
However, venue over RICO claims is controlled by both 18 U.S.C. § 1965(a) and the
general venue provisions contained in 28 U.S.C. § 1391. In a civil action, venue is
proper:
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.
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28 U.S.C. § 1391(b).
Fiorani’s complaint neither sets forth facts indicating that any defendant is located
in the Middle District of Pennsylvania nor alleges that any of the events or omissions
giving rise to his claims occurred there. As the District Court notes, the only mention
Fiorani makes of Pennsylvania is to indicate that Mid-Atlantic Regional Dodge, a non-
defendant, is located in Malvern, Pennsylvania. However, Malvern’s location in Chester
County places it within the Eastern District of Pennsylvania.
District courts generally should not dismiss in forma pauperis complaints for
improper venue. As we have previously explained,
28 U.S.C. § 1915 contains no express authorization for a dismissal for lack
of venue. In the absence of any such statutory authority, it is inappropriate
for the trial court to dispose of the case sua sponte on an objection to the
complaint which would be waived if not raised by the defendant(s) in a
timely manner.
Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976); see also Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 796 (2d Cir. 1999) (“A district court may not dismiss a case sua
sponte for improper venue absent extraordinary circumstances.”). Here, the District
Court raised the issue of venue sua sponte without expressly considering whether the
interests of justice weigh in favor of transferring Fiorani’s complaint instead of
dismissing it. See 28 U.S.C. § 1406(a). The District Court erred in doing so.
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Under the circumstances presented here, the District Court’s error was not
harmless. See Buchanan, 145 F.3d at 388.2 Fiorani’s complaint makes it abundantly
clear that there is no conceivable basis for venue in the Middle District of Pennsylvania
because none of the defendants is alleged to reside there and because his allegations are
not related in any way to that District. See 28 U.S.C. § 1391(b); 18 U.S.C. § 1965(a).
While some of Fiorani’s claims are duplicitous of claims contained in his prior complaint
that was dismissed by the Eastern District of Virginia, the District Court’s dismissal of
his complaint with prejudice precludes Fiorani from refiling his new allegations in the
proper venue. As we have previously noted, dismissal with prejudice is only appropriate
in limited circumstances not applicable here. Emerson v. Thiel Coll., 296 F.3d 184, 190
(3d Cir. 2002); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
IV.
In sum, the District Court erred by sua sponte dismissing with prejudice Fiorani’s
complaint for improper venue, and such error was not harmless. Accordingly, we will
vacate the District Court’s dismissal order and remand the matter for further proceedings.
2
The Buchanan court affirmed a dismissal for improper venue, concluding that “such
procedural error is harmless in cases where, as here, the appellant has had an opportunity
to challenge the district court’s ruling on appeal but has failed to demonstrate that venue
is proper.” Buchanan, 145 F.3d at 388. However, the district court had dismissed
Buchanan’s complaint without prejudice. See id. at 387. While Fiorani has challenged
the District Court’s ruling on appeal, we focus on the fact that, unlike in Buchanan, the
District Court dismissed his complaint with prejudice, foreclosing him from filing his
new allegations in the proper venue.
6