United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed June 23, 1998
No. 97-5363
Jasper Napoleon Buchanan,
Appellant
v.
Audrey Manley, Surgeon General, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv01840)
Jasper Buchanan, pro se, filed a brief for appellant.
Before: Williams, Sentelle and Henderson, Circuit
Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: Jasper Buchanan, proceeding without counsel,
filed a complaint against the Surgeon General of the United
States, the president of the American Medical Association
("AMA"), and the heads of two tobacco companies. Buchan-
an, who is incarcerated in South Carolina, alleged that the
Surgeon General and the president of the AMA "deliberately
neglected" their duties to protect him from health risks
associated with the tobacco companies' products. He further
alleged that the heads of the tobacco companies intentionally
distributed their products without a warning notice regarding
the health risks of smoking, and that he suffered injury as a
result. Although his complaint does not describe the prod-
ucts at issue, on appeal he has provided exhibits showing the
companies' packages for cigarette rolling papers and cigarette
tobacco. Buchanan styled his complaint as one brought
under the Federal Tort Claims Act but also claimed that his
eighth amendment rights have been violated. He sought
declaratory relief and damages.
After determining that there were no viable federal claims
and dismissing the Surgeon General as a defendant, the
district court concluded that the only proper basis for its
jurisdiction would be pursuant to 28 U.S.C. s 1332, which
provides for diversity jurisdiction in civil actions. The district
court then determined that venue in the District of Columbia
was improper and dismissed the complaint without prejudice.
We publish this opinion to address the district court's sua
sponte dismissal of the complaint on the ground of improper
venue.1
In Anger v. Revco Drug Co., 791 F.2d 956 (D.C. Cir. 1986)
(per curiam), we held that the district court may not sua
sponte dismiss a case as frivolous under 28 U.S.C. s 1915(d) 2
on the sole ground that the court lacks personal jurisdiction
over the defendants or that venue is improper. The court
reasoned that "the Federal Rules of Civil Procedure indicate
that personal jurisdiction is a matter to be raised by motion
or responsive pleading, not by the court sua sponte. There-
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1 The district court's rulings that Buchanan failed to state a
federal claim against any of the defendants, and its dismissal of the
Surgeon General as a defendant, do not warrant a published opinion
and are affirmed by separate order.
2 Current version at 28 U.S.C. s 1915(e)(2)(B)(i).
fore, before the complaint has been served and a response
received, the court is not positioned to determine conclusively
whether personal jurisdiction exists." Anger, 791 F.2d at 958
& n.3 (citing Fed. R. Civ. P. 12(b) and (h)(1), and extending
their application to sua sponte dismissals for improper ven-
ue). The court also concurred in the Third Circuit's state-
ment that 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." Id. at 958 (quoting Sinwell v. Shapp, 536 F.2d 15,
19 (3d Cir. 1976)).
As Anger makes clear, the district court erred by sua
sponte dismissing Buchanan's complaint. We conclude, how-
ever, 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. This conclusion is consistent with this
court's longstanding practice of allowing such error to be
cured on appeal. In the past, this court has affirmed a sua
sponte dismissal on venue or personal jurisdiction grounds
when it is clear that one or both of those defenses exists and
no further factual development in the district court is neces-
sary. The court has determined whether affirmance is war-
ranted by issuing to appellees an order to show cause why the
district court's dismissal order should not be vacated and the
case remanded, and simultaneously inviting appellees to raise
threshold defenses, including lack of personal jurisdiction and
improper venue. We now adopt, with the approval of the full
court, a modified procedure that eliminates the requirement
of an order to show cause directed at appellees.3 This
approach differs from the court's current practice only in that
appellees will no longer be required to enter an appearance
and raise the venue and personal jurisdiction defenses in
every case.
Although the defenses of improper venue and lack of
personal jurisdiction are waived if not raised in a timely
manner, see Fed. R. Civ. P. 12(h)(1), this does not automati-
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3 Because this change in procedure has been considered and
approved by the full court, it constitutes the law of the circuit. See
Irons v. Diamond, 670 F.2d 265, 268 n.11 (D.C. Cir. 1981).
cally preclude an appellate court from affirming the sua
sponte dismissal of a complaint under 28 U.S.C. s 1915(e) on
the basis of those defenses without first requiring appellees to
raise them. In cases where the complaint is dismissed before
it is served, a defendant who never had notice of the suit
cannot be said to have waived an affirmative defense. More-
over, the usual concern behind requiring defenses such as
lack of personal jurisdiction over the defendant and improper
venue to be raised early or waived--that is, the possible
unfairness to a plaintiff of rejecting a suit "after considerable
time and expense has been invested in it"--are not present
when the case is dismissed at the outset. Pino v. Ryan, 49
F.3d 51, 53 (2d Cir. 1995) (affirmative defense appearing on
the face of the complaint may be a basis for sua sponte
dismissal as frivolous prior to service of the complaint).
One significant concern that does arise when the district
court sua sponte dismisses a complaint on the basis of a
venue or personal jurisdiction defense is that the plaintiff
does not have an opportunity to raise arguments supporting
venue or personal jurisdiction.4 Accordingly, we will allow
appellants to raise arguments supporting venue or personal
jurisdiction, and even proffer evidence, for the first time on
appeal. Often appellants will have addressed venue or per-
sonal jurisdiction in a motion or brief, but if not, the court will
issue an order to show cause to appellants to allow them to
demonstrate that venue is proper or that the court has
personal jurisdiction over the defendants. Only if appellants
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4 Several circuits nevertheless have allowed the sua sponte
dismissal of a complaint as frivolous based on an affirmative defense
that appears on the face of the complaint. See Nasim v. Warden,
Maryland House of Correction, 64 F.3d 951, 956 (4th Cir. 1995) (en
banc) (statute of limitations), cert. denied, 516 U.S. 1177 (1996);
Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (same); Moore v.
McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (same); Johnson v.
Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991) (same), cert. denied,
502 U.S. 1063 (1992); Yellen v. Cooper, 828 F.2d 1471, 1476 (10th
Cir. 1987) (waiver); Sanders v. United States, 760 F.2d 869, 871-72
(8th Cir. 1985) (per curiam) (personal jurisdiction).
can make the relevant showing will appellees be required to
enter an appearance and respond to an order to show cause
why the district court's dismissal order should not be vacated
and the case remanded. This procedure gives appellants
notice of affirmative defenses and an opportunity to be heard,
allows appellees to avoid the burden of appearing in a case
that appears clearly to have been brought in the wrong court,
and prevents pointless remands where the district court's
procedural error is harmless. See 28 U.S.C. s 2111 ("On the
hearing of any appeal ... in any case, the court shall give
judgment after an examination of the record without regard
to error or defects which do not affect the substantial rights
of the parties.").
In this case, Buchanan has addressed in his brief the
district court's venue ruling, but has failed to demonstrate
that venue here is proper. As noted above, we have by
separate order affirmed the district court's dismissal of Bu-
chanan's federal claims. Arguably, the complaint states a
common law tort claim for failure to warn Buchanan of the
health risks associated with the use of cigarette rolling paper
and loose tobacco. The only possible basis for federal juris-
diction over this claim is the diversity statute. See 28 U.S.C.
s 1332.5 The venue provisions for diversity actions, however,
are not met. Such actions may be brought in a judicial
district where (1) any defendant resides, if all defendants
reside in the same State, (2) 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 any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no
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5 Although the complaint alleges more than $75,000 as the
amount in controversy and it appears that there may be complete
diversity between Buchanan and the defendants, the allegations of
the complaint are not detailed enough to determine with absolute
certainty where each litigant resides. The court need not reach
that issue, however, given our conclusion that venue is improper.
See In re Minister Papandreou, 139 F.3d 247, 1998 WL 16351, *7
(D.C. Cir. 1998) (court may dismiss on non-merits grounds before
finding subject matter jurisdiction).
district in which the action may otherwise be brought. See 28
U.S.C. s 1391(a). The complaint gives addresses for the non-
federal defendants in Illinois and Kentucky, and Buchanan
has not alleged that any of them resides in the District of
Columbia. Moreover, no part of the events or omissions
which gave rise to the claim are alleged to have occurred
here. Nor has Buchanan shown that the action could not be
brought in any other district. Accordingly, we affirm the
district court's dismissal for improper venue.6
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6 The district court did not abuse its discretion in concluding
that transfer would not be in the interest of justice. See 28 U.S.C.
s 1406(a). Not only are there substantive problems with Buchan-
an's claims, but the sketchy allegations of the complaint make it
difficult to determine where this case could properly be brought.