Defender Services, Inc. v. Mayorkas

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DEFENDER SERVICES, INC., :
:
Plaintiff, : Civil Action No.: 21-1314 (RC)
:
v. : Re Document No.: 7
:
ALEJANDRO MAYORKAS, Secretary, :
Department of Homeland Security, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO TRANSFER AND
ALTERNATIVELY TO DISMISS

I. INTRODUCTION

Plaintiff Defender Services, Inc., brought this action against Defendants Alejandro

Mayorkas, Secretary of Homeland Security, and the United States Citizenship and Immigration

Services (“USCIS”) under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the

Mandamus Act, 28 U.S.C. § 1361. Compl. ¶¶ 2, 5–6, ECF No. 1. Through this action, Plaintiff

seeks to compel Defendants to adjudicate Plaintiff’s motions to reopen and reconsider USCIS’s

revocation of immigrant visa petitions filed by Plaintiff on behalf of two prospective employees.

Id. ¶¶ 1, 14.

Defendants have moved to transfer this action to the District of South Carolina and

alternatively to dismiss this case for improper venue, to which Plaintiff has filed an opposition,

and Defendants a reply thereto. For the reasons explained below, the Court will grant

Defendants’ motion to transfer this case to the District of South Carolina and deny their motion

to dismiss.
 II. BACKGROUND

Plaintiff is a for-profit corporation residing in South Carolina. Compl. ¶ 4. In 2016,

Plaintiff filed two Form I-140 Immigrant Petitions for Alien Worker (“Petitions”) with the

USCIS on behalf of Shing Chi Chu and Man Oi Yan, two prospective employees of Plaintiff’s.

Id. ¶ 6. The USCIS initially approved Plaintiff’s Petitions, but subsequently revoked its approval

of the Petitions on February 22, 2019. Id. ¶¶ 6–7. Plaintiff then timely filed motions to reopen

and reconsider both of the USCIS’s revocations, which were denied by the USCIS on May 30,

2019. Id. ¶¶ 8, 10. Following the USCIS’s denial of its motions to reopen and reconsider,

Plaintiff filed Civil Action No. “1:20-cv-00636-RC in this Court seeking judicial review” of the

USCIS’s action. Id. ¶ 11. Plaintiff later voluntarily dismissed that suit when “the USCIS sua

sponte vacated its preceding decision of May 30, 2019,” following this Court’s order instructing

the USCIS to respond to Plaintiff’s motion for summary judgment in that action. Id. ¶¶ 12–13.

On May 12, 2021, Plaintiff filed this action arguing that over nine months had elapsed

since the USCIS vacated its denial of Plaintiff’s motions to reopen and reconsider, which

Plaintiff had filed over two years ago, and that the USCIS had failed to render a decision on

Plaintiff’s motions. Id. ¶ 14. As such, Plaintiff through this action seeks “to compel a decision

on [its] motions to reopen and reconsider the revocation of its immigrant visa petitions upon

behalf of” its two prospective employees. Id. ¶ 1. In its complaint, Plaintiff named as

Defendants Alejandro Mayorkas, Secretary of Homeland Security, and the USCIS, “each an

officer or agency of the United States,” and alleged that, “[i]nasmuch as both defendants reside

in the District of Columbia, this Court has venue over this matter.” Id. ¶¶ 3, 5–6, 15. Plaintiff

sued Defendants under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the

Mandamus Act, 28 U.S.C. § 1361, arguing that Defendants have primary authority under the

2
Immigration and Nationality Act, in the case of the Secretary of Homeland Security, and

delegated authority, in the case of the USCIS, “for the adjudication of petitions for immigrant

workers and all the procedural steps pertaining to them, including the revocation of approved

petitions and motions to reopen and/or reconsider those revocations.” Id. ¶¶ 2, 5–6.

Pending before the Court is Defendants’ motion to transfer this action to the District of

South Carolina (“Transferee District”) and, in the alternative, to dismiss this case pursuant to

Federal Rule of Civil Procedure 12(b)(3) for improper venue. See generally Defs.’ Mot. to

Transfer & Alternatively to Dismiss & Mem. Supp. Thereof (“Transfer Mot.”), ECF No. 7.

Plaintiff opposes Defendants’ motion, see generally Pl.’s Opp’n to Mot. to Transfer or Dismiss

(“Pl.’s Opp’n”), ECF No. 9, and Defendants have filed a reply to Plaintiff’s opposition, see

generally Defs.’ Reply Supp. Mot. to Transfer & Alternatively Dismiss (“Defs.’ Reply”), ECF

No. 11. Defendants further request, with Plaintiff’s consent, an extension of time to reply to

Plaintiff’s complaint should the Court decide to transfer this case. Transfer Mot. at 13–14. The

matter is now ripe for consideration.

III. ANALYSIS

Defendants ask the Court to transfer this case to the District of South Carolina or,

alternatively, dismiss this case for lack of venue. Transfer Mot. at 2–3, 9–10. After considering

the relevant filings, the Court will grant Defendants’ motion to transfer. Because the Court will

transfer this case to the Transferee District, it need not address Defendants’ alternative motion to

dismiss. See Transfer Mot. at 9 (“[W]ere the Court to transfer this action under Section 1404, the

Court need not consider Defendants’ motion to dismiss.”); see also Wei Lai Dev. LLC v. U.S.

Citizenship & Immigr. Servs., No. 21-cv-887 (RDM), 2021 WL 2073403, at *3 n.5 (D.D.C. May

24, 2021) (“[T]he Court is not obligated to resolve motions to dismiss for improper venue before

3
evaluating whether transferring the action under § 1404(a) is warranted.”); Mohammadi v.

Scharfen, 609 F. Supp. 2d 14, 16 n.2 (D.D.C. 2009) (“In light of the transfer, the court does not

address the defendants’ motion to dismiss.”). In addition, the Court will grant Defendants’

request for an extension of time to respond to Plaintiff’s complaint, to which Plaintiff has

consented. See Transfer Mot. at 13–14.

A. Legal Standard

The federal change of venue statute 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.” 28 U.S.C. § 1404(a). Even if a plaintiff

has brought a case in a proper venue, a district court may transfer it to another district. Ngonga

v. Sessions, 318 F. Supp. 3d 270, 274 (D.D.C. 2018) (citing 28 U.S.C. § 1404(a)). In making the

decision to transfer, the court must make an “individualized, case-by-case consideration of

convenience and fairness.” Abusadeh v. Chertoff, No. 06-cv-2014, 2007 WL 2111036, at *3

(D.D.C. July 23, 2007) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).

The moving party has the burden to establish that transfer is proper. Chauhan v.

Napolitano, 746 F. Supp. 2d 99, 102 (D.D.C. 2010); see also Ctr. for Envtl. Sci., Accuracy &

Reliability v. Nat’l Park Serv., 75 F. Supp. 3d 353, 356 (D.D.C. 2014) (“The movant bears the

burden of persuasion that transfer of an action is proper.”). To establish that transfer of venue is

proper, the moving party must make two showings: that the action could have been brought in

the transferee district, and that the public and private interests favor transfer. Ctr. for Envtl. Sci.,

Accuracy & Reliability, 75 F. Supp. 3d at 356. Moreover, in deciding a motion to transfer, a

court may consider materials outside the pleadings. Chauhan, 746 F. Supp. 2d at 102. “The

decision whether a transfer or a dismissal is in the interest of justice, however, rests within the

4
sound discretion of the district court.” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789

(D.C. Cir. 1983).

B. Whether this Action Could Have Been Brought in the District of South Carolina

Defendants must first demonstrate that “the proposed transferee district is one where the

action ‘might have been brought.’” Ctr. for Env’t Sci., Accuracy & Reliability, 75 F. Supp. 3d at

356 (quoting 28 U.S.C. § 1404(a)). The Court concludes that this action could have been

brought in the District of South Carolina.

An action where “a defendant is an officer or employee of the United States or any

agency thereof acting in his official capacity . . . , 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). Moreover, for venue purposes, a corporate

plaintiff resides in the judicial district where it maintains its principal place of business. 28

U.S.C. § 1391(c)(2). In this case, Plaintiff “is a for profit corporation residing in the State of

South Carolina.” Compl. ¶ 4. Moreover, real property is neither involved nor at issue in this

action. Therefore, because Plaintiff resides in the Transferee District, this case “might have been

brought” in that district for purposes of the federal change of venue statute. 28 U.S.C. § 1404(a);

see also 28 U.S.C. § 1391(e)(1)(C).

C. The Balance of Private and Public Interests

Because the threshold question has been satisfied, Defendants must now “demonstrate

that considerations of convenience and the interests of justice weigh in favor of a transfer.”

Chauhan, 746 F. Supp. 2d at 102. The Court has broad discretion to “balance case-specific

5
factors related to the public interest of justice and the private interests of the parties and

witnesses.” Al-Ahmed v. Chertoff, 564 F. Supp. 2d 16, 19 (D.D.C. 2008) (quoting Montgomery

v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32 (D.D.C. 2008)).

1. Private Interest Factors

The private interest factors favor transfer of this action to the District of South Carolina.

To determine whether transfer of venue is in the private interests of the parties and witnesses, the

Court must weigh the following six factors: (1) the plaintiff’s choice of forum, (2) the

defendant’s choice of forum, (3) where the claim arose, (4) the convenience of the parties, (5) the

convenience of the witnesses, and (6) the ease of access to sources of proof. Aftab v. Gonzalez,

597 F. Supp. 2d 76, 80 (D.D.C. 2009). The Court will weigh each of these factors in turn.

Defendants argue that this action should be transferred to the Transferee District,

Defendants’ forum of choice, because “Plaintiff does not reside in the District of Columbia and

does not claim that any relevant factual events occurred” here. Transfer Mot. at 5–6. In doing

so, Defendants urge “that application-specific immigration cases are more conveniently handled

where a plaintiff resides,” and contend that “evidence underlying a non-citizen’s claims in such

circumstances is located in that district (i.e., with the plaintiff) and [that] the alleged injuries

from the wrongful actions are felt in plaintiff’s home district.” Defs.’ Reply at 1–2; Transfer

Mot. at 4–6. Plaintiff responds that “the alleged interest injuries from the wrongful actions are

not felt in South Carolina but in North Carolina where [Plaintiff] seeks to employ the

beneficiaries.” Pl.’s Opp’n at 12. Moreover, Plaintiff argues that both it and its counsel will be

substantially inconvenienced by the transfer, both financially and with respect to the distance its

counsel would have to travel should the case be transferred. Id. at 7–9.

6
 a. Plaintiff’s and Defendants’ Choice of Fora

Because Defendants seek transfer of this action to Plaintiff’s home district, the district in

which Plaintiff resides, it cannot be said that Plaintiff could “reasonably claim to be

inconvenienced by litigating in [its] home forum.” Aishat v. U.S. Dep’t of Homeland Sec., 288

F. Supp. 3d 261, 270 (D.D.C. 2018) (quoting Tower Lab’ys, Ltd. v. Lush Cosmetics Ltd., 285 F.

Supp. 3d 321, 326 (D.D.C. 2018)). Thus, Defendants’ choice of forum weighs in favor of

transfer. In contrast, although Plaintiff’s choice of forum is generally entitled to deference,

“[t]he plaintiff’s choice of forum is . . . ‘conferred less deference by the court when [it] is not the

plaintiff’s home forum.’” Abusadeh, 2007 WL 2111036, at *4 (last alteration in original)

(quoting Shawnee Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002)). Because the

Transferee District is Plaintiff’s home forum, as opposed to the District of Columbia, the

Plaintiff’s choice of forum factor only slightly weighs against transfer.

b. Location of Activities that Gave Rise to the Action

The third private interest factor, where the claim arose, weighs strongly in favor of

transfer. “When the material events that form the factual predicate of a plaintiff’s claim did not

occur in his chosen forum, transfer is favored.” Ngonga, 318 F. Supp. 3d at 275 (citing Tower

Lab’ys, Ltd., 285 F. Supp. 3d at 326). Plaintiff, a resident of South Carolina, has asserted that the

Texas Service Center Director “is currently refusing to decide plaintiff’s motion to reopen and/or

reconsider,” and has offered that “North Carolina [is] where the petitioner seeks to employ the

beneficiaries.” Pl.’s Opp’n at 12, 15. In other words, Plaintiff cites nothing to show that any

material events occurred in the District of Columbia. Thus, because no material events forming

the factual predicate of Plaintiff’s claim occurred in the District of Columbia, this factor strongly

supports transfer.

7
 c. Convenience of the Parties

Plaintiff argues that it will be substantially inconvenienced by a transfer, noting that a

transfer would substantially increase its legal expenses and urging the Court to take into

consideration the location of its counsel. Pl.’s Opp’n at 7–9. Plaintiff relies on several out-of-

circuit cases for the proposition that courts should consider the location of counsel as a factor “in

balancing the relative conveniences in transfer motions.” See id. at 10–11. However, this Court

has recently and frequently stated that location of counsel is not a consideration—or is, at most, a

minor consideration—with respect to the convenience of the parties in this District. See, e.g.,

Wolfram Alpha LLC v. Cuccinelli, 490 F. Supp. 3d 324, 333 (D.D.C. 2020) (“The location of

counsel is not a consideration under this factor.”); Chauhan, 746 F. Supp. 2d at 104 (“Plaintiffs’

argument that their counsel is located in Maryland does not outweigh these considerations.”);

McClamrock v. Eli Lilly & Co., 267 F. Supp. 2d 33, 40–41 (D.D.C. 2003) (“The location of

counsel carries little, if any, weight in an analysis under § 1404(a).” (internal quotation omitted)).

And in this case, location of counsel is even less significant in making venue appropriate here

because Plaintiff’s counsel is located in New York, not the District of Columbia.

Furthermore, “[v]enue is convenient where parties are located.” Wolfram Alpha LLC,

490 F. Supp. 3d at 333. Here, Plaintiff is located in the District of South Carolina. Compl. ¶ 4.

Moreover, a plaintiff could not “reasonably claim to be inconvenienced by litigating in [its]

home forum.” Aishat, 288 F. Supp. 3d at 270 (quoting Tower Lab’ys, Ltd., 285 F. Supp. 3d at

326). Because Plaintiff cannot reasonably claim that it will be inconvenienced by the transfer of

this case to its home forum, it cannot object to venue in the Transferee District. See id. Thus,

the convenience-of-the-parties factor is strongly in favor of transfer.

8
 d. Convenience of the Witnesses and Ease of Access to Evidence

With respect to the convenience of the witnesses and ease of access to sources of proof,

Plaintiff asserts that it will not call any witnesses in this case, and both parties seem to agree that

this action will be resolved on the record itself. Defs.’ Reply at 3; Pl.’s Opp’n at 8. Therefore,

the final two private interest factors are neutral.

* * *

Overall, the combined weight of the private interest factors strongly favors transfer.

Although Plaintiff’s choice of forum weighs against transfer, deference to that choice is

weakened because the District of Columbia is not Plaintiff’s home forum. Conversely,

Defendants’ choice of forum weighs in favor of transfer because the Transferee District is

Plaintiff’s home forum. Moreover, because material events forming the factual predicate of

Plaintiff’s claim happened outside of the District of Columbia, the third private interest factor

regarding the location of activities giving rise to the action strongly favors transfer. Likewise,

because Plaintiff is located in the Transferee District, the convenience-of-the-parties factor

strongly supports transfer. The last two private interest factors, the convenience of the witnesses

and the ease of access to sources of proof, neither weigh in favor nor against transfer. Therefore,

on balance, the private interest factors strongly support transfer of this case to the District of

South Carolina.

2. Public Interest Factors

The public interest factors likewise favor transfer of this action to the District of South

Carolina. In determining whether transfer is in the public interest, the Court must consider the

following factors: (1) the transferee court’s familiarity with the applicable law; (2) the relative

9
congestion of the calendars of the transferee and transferor courts; and (3) the local interest in

deciding local controversies at home. Al-Ahmed, 564 F. Supp. 2d at 19.

On the first public interest factor, Defendants argue that “there is no reason to suspect

that any federal district court is unfamiliar with federal immigration law.” Transfer Mot. at 8.

Because Plaintiff’s action implicates federal law, the first public interest factor, the transferee

court’s familiarity with the applicable law, Al-Ahmed, 564 F. Supp. 2d at 19, is neutral due to the

Court’s “recongni[tion of] ‘the principle that the transferee federal court is competent to decide

federal issues correctly,’” Mohammadi, 609 F. Supp. 2d at 19 (quoting In re Korean Air Lines

Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175 (D.C. Cir. 1987)). Accordingly, the Court

concludes that the District of South Carolina is equally competent to adjudicate Plaintiff’s

claims. See Johnson v. Lumenos, Inc., 471 F. Supp. 2d 74, 78 (D.D.C. 2007) (determining that

“[t]he transferee district is, no doubt, familiar with federal law and competent to interpret it”).

On the second public interest factor of the relative congestion of the calendars of the

transferee and transferor courts, Al-Ahmed, 564 F. Supp. 2d at 19, Defendants note that “there

can be no dispute that each District faces congested dockets,” Transfer Mot. at 8, and Plaintiff

says nothing to the contrary, see generally Pl.’s Opp’n. Given that the parties seem to agree that

this factor is neutral and the Court sees nothing to the contrary, it concludes that this factor is

indeed neutral. See Wolfram Alpha LLC, 490 F. Supp. 3d at 337 (assessing the congestion-of-

calendars public interest factor and concluding that due to “competing and sometimes

contradictory statistics, it would be difficult to conclude anything other than that this factor is

neutral”).

The third public interest factor, the local interest in deciding local controversies at home,

Al-Ahmed, 564 F. Supp. 2d at 19, weighs in favor of transfer. This factor is “perhaps most

10
important amongst the public factors.” Wolfram Alpha LLC, 490 F. Supp. 3d at 338. In this

case, Plaintiff does not argue that the challenged decision was made in the District of Columbia;

rather, Plaintiff maintains that “the function of the Texas Service Center Director, who is

currently refusing to decide plaintiff’s motion to reopen and/or reconsider, is vested in the

Secretary of Homeland Security, thereby imposing upon him the duty to decide this motion.”

Pl.’s Opp’n at 14–15. Moreover, the impacts of this action will overwhelmingly be felt in the

Transferee District, where Plaintiff resides, and in North Carolina, where Plaintiff seeks to

employ its prospective employee beneficiaries. See Transfer Mot. at 8; Pl.’s Opp’n at 12.

Therefore, the Transferee District, as opposed to the District of Columbia, has a clear interest in

resolving this dispute. Hence, on balance, the combined weight of the public interest factors tips

in favor of transfer.

IV. CONCLUSION

Because the balance of the private and public interests at stake supports the transfer,

Defendants’ motion to transfer the case to the District of South Carolina is GRANTED and their

motion to dismiss is DENIED (ECF No. 7). Additionally, Defendants’ request for extension of

time is GRANTED. Defendants shall answer or otherwise respond to the Complaint within 21

days of the case being placed on the electronic docket in the United States District Court for the

District of South Carolina. An order consistent with this Memorandum Opinion is separately

and contemporaneously issued.

Dated: March 29, 2022 RUDOLPH CONTRERAS
United States District Judge

11