Tim Day v. City of Galveston, 480 F. App'x 119 (3rd Cir. 2012). · Go Syfert
Tim Day v. City of Galveston, 480 F. App'x 119 (3rd Cir. 2012). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 5 distinct courts.
Strongest positive: Fisi v. Extra Space Storage Inc. (mied, 2023-08-09)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Fisi v. Extra Space Storage Inc.
E.D. Mich. · 2023 · confidence medium
Johnson v. Christopher, 233 F. App’x 852, 853-54 (10th Cir. 2007) (affirming district court’s sua sponte dismissal without prejudice pursuant to § 1406(a) when proper venue was located in the Northern District of Oklahoma and case was filed in the Eastern District of Oklahoma in lieu of transferring action); Davis v. Reagan, No. 88-6419, 1989 WL 40200 at *1 (6th Cir. 1989) (affirming sua sponte pre-service dismissal on grounds of improper venue in case filed in Tennessee, where proper venue was in the Western District of Pennsylvania); Day v. City of Galveston, 480 F. App’x 119, 121 (3d…
discussed Cited as authority (rule) Fisi v. Extra Space Storage Inc.
E.D. Mich. · 2023 · confidence medium
Johnson v. Christopher, 233 F. App’x 852, 853-54 (10th Cir. 2007) (affirming district court’s sua sponte dismissal without prejudice pursuant to § 1406(a) when proper venue was located in the Northern District of Oklahoma and case was filed in the Eastern District of Oklahoma in lieu of transferring action); Davis v. Reagan, No. 88-6419, 1989 WL 40200 at *1 (6th Cir. 1989) (affirming sua sponte pre-service dismissal on grounds of improper venue in case filed in Tennessee, where proper venue was in the Western District of Pennsylvania); Day v. City of Galveston, 480 F. App’x 119, 121 (3d…
discussed Cited as authority (rule) Sifuentes III v. Adobe
E.D. Mich. · 2023 · confidence medium
Johnson v. Christopher, 233 F. App’x 852, 853-54 (10th Cir. 2007) (affirming district court’s sua sponte dismissal without prejudice pursuant to § 1406(a) when proper venue was located in the Northern District of Oklahoma and case was filed in the Eastern District of Oklahoma in lieu of transferring action); Davis v. Reagan, No. 88-6419, 1989 WL 40200 at *1 (6th Cir. 1989) (affirming sua sponte pre-service dismissal on grounds of improper venue in case 2 filed in Tennessee, where proper venue was in the Western District of Pennsylvania); Day v. City of Galveston, 480 F. App’x 119, 121 (…
discussed Cited as authority (rule) Sifuentes III v. Pluto TV
E.D. Mich. · 2023 · confidence medium
Johnson v. Christopher, 233 F. App’x 852, 853-54 (10th Cir. 2007) (affirming district court’s sua sponte dismissal without prejudice pursuant to § 1406(a) when proper venue was located in the Northern District of Oklahoma and case was filed in the Eastern District of Oklahoma in lieu of transferring action); Davis v. Reagan, No. 88-6419, 1989 WL 40200 at *1 (6th Cir. 1989) (affirming sua sponte pre-service dismissal on grounds of improper venue in case filed in Tennessee, where proper venue was in the Western District of Pennsylvania); Day v. City of Galveston, 480 F. App’x 119, 121 (3d…
discussed Cited as authority (rule) Blanton v. Greyhound Lines, Inc.
W.D. Ky. · 2022 · confidence medium
Appx. 852, 853-54 (10th Cir. 2007) (affirming district court’s sua sponte dismissal without prejudice pursuant to § 1406(a) when proper venue is located in the Northern District of Oklahoma and case is filed in the Eastern District of Oklahoma in lieu of transferring action to the Northern District); Davis v. Reagan, 872 F.2d 1025 (Table), [published in full-text format at 872 F.2d 1025 , 1989 U.S. App. LEXIS 5238 ] [](6th Cir. 1989) (affirming sua sponte pre-service dismissal on grounds of improper venue when case filed in Tennessee and proper venue in the Western District of Pennsylvania)…
discussed Cited as authority (rule) EASTERN CONTROLS, INC. v. BORYSOWSKI
D.N.J. · 2022 · confidence medium
Appx. 852 , 853–54 (10th Cir. 2007) (affirming district court's sua sponte dismissal without prejudice pursuant to § 1406(a)); Davis v. Reagan, 872 F.2d 1025 , 1989 WL 40200 at *1 (6th Cir. 1989) (affirming sua sponte dismissal on grounds of improper venue when case filed in Tennessee and proper venue in the Western District of Pennsylvania); Day v. City of Galveston, 480 Fed.
cited Cited "see" ZAHIR v. HOGAN
E.D. Pa. · 2021 · signal: see · confidence high
See Day v. City of Galveston, 480 F. App’x 119, 121 (3d Cir. 2012) (quoting Gomez v. USAA Fed.
cited Cited "see" ZAHIR v. HOGAN
E.D. Va. · 2021 · signal: see · confidence high
See Day v. City of Galveston, 480 F. App’x 119, 121 (3d Cir. 2012) (quoting Gomez v. USAA Fed.
Retrieving the full opinion text from the archive…
Tim T. DAY, Appellant
v.
CITY OF GALVESTON; Simpson Galleries; Galveston Police Department
19-1747.
Court of Appeals for the Third Circuit.
May 11, 2012.
480 F. App'x 119
Tim T. Day, Galveston Island, TX, pro se.
Scirica, Smith, Chagares.
Cited by 8 opinions  |  Unpublished

OPINION

PER CURIAM.

Tim T. Day appeals pro se from the order of the District Court dismissing his complaint sua sponte for improper venue. Although the District Court acted prematurely in taking that action sua sponte, we conclude that such error was harmless under the circumstances presented here. We will affirm on that basis.

I.

Day filed a motion for leave to proceed in forma pauperis (“IFP”) along with a complaint against the City of Galveston, Texas, the Galveston Police Department, and a private company with an address in Houston, Texas. Day alleges that defendants violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. His specific allegations are somewhat difficult to follow, but he appears to allege that defendants conspired to deprive him of the use of property and to cause him financial injury in order to prevent him from pursuing a Congressional campaign in Texas. Among the predicate acts he alleges are the revocation of a certificate of occupancy for an office building and numerous false arrests. He alleges that all of these acts occurred in Texas. [1]

By order entered January 11, 2012, the District Court granted Day’s motion for leave to proceed IFP and sua sponte dismissed his complaint for improper venue under the venue statutes applicable to civil actions generally, see 28 U.S.C. § 1391(b), and to civil RICO actions in particular, see 18 U.S.C. § 1965(a). Day appeals, and we have jurisdiction under 28 U.S.C. § 1291. We notified Day that we would consider this appeal for summary action and permitted him to file a response, but he has not done so.

II.

District courts generally should not dismiss IFP complaints sua sponte for improper venue. As we explained:

28 U.S.C. § 1915 [the IFP statute] 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. Furthermore, even where a defect in venue has been properly raised, a question remains whether the case should be dismissed or transferred to a district in which venue would be proper.

[*121] Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir.1976) (footnotes omitted); 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.”). In this case, the District Court raised the issue of venue sua sponte without giving Day an opportunity to respond (by amendment or otherwise) and without expressly considering whether the interests of justice weigh in favor of transferring the matter instead of dismissing it. See 28 U.S.C. § 1406(a). This was error.

Under the circumstances presented here, however, that error was harmless. See Buchanan v. Manley, 145 F.3d 386, 388 (D.C.Cir.1998) (applying harmless error to improper sua sponte dismissal for lack of venue). We reach this conclusion for two reasons. First, Day’s complaint makes it abundantly clear that there is no conceivable basis for venue in the Eastern 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). To the contrary, Day’s few specific factual allegations concern the conduct of Texas residents and entities in Texas. Day was on notice of the District Court’s basis for dismissing his complaint when he appealed, but he has not filed anything challenging the District Court’s conclusion that venue was improper or made any attempt to show otherwise. See Buchanan, 145 F.3d at 388 (holding that improper sua sponte dismissal for lack of venue was harmless error where “the appellant has had an opportunity to challenge the district court’s ruling on appeal but has failed to demonstrate that venue is proper”). Thus, there is no basis to question the substance of the District Court’s ruling.

Second, there also is no indication that transferring this matter instead of dismissing it might be in the interests of justice. Dismissal poses no apparent problem with the four-year civil RICO statute of limitations. See Rogers v. McDorman, 521 F.3d 381, 387 & n. 23 (5th Cir.2008) (citing Agency Holding Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987)); Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 510 n. 11 (3d Cir.2006) (same). Day alleges that defendants’ conduct occurred between August 2010 and December 2011. Thus, he will have ample time to refile his claims in a proper venue. And requiring him to do so will not subject him to a second filing fee because the District Court granted him leave to proceed IFP and did not assess one.

For these reasons, we will affirm the judgment of the District Court.

1

. Among other things, Day’s form complaint contains a section asking “Where did the events giving rise to your claim(s) occur?” Day answered: “2411 B Strand Galveston, Galveston City Hall, Galveston Islands, TX[.]” (Dist. Ct. Docket No. 3 at 3, ¶ II I.A.)