Beaton v. Manley, et al.

2003 DNH 074

• Court: District Court, D. New Hampshire
• Decided: May 12, 2003
• Docket: CV-03-009-M
• Status: Published

Opinion

Beaton v . Manley, et a l . CV-03-009-M 05/12/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Deborah Jean Beaton, Plaintiff

v. Civil N o . 03-009-M Opinion N o . 2003 DNH 074 M . Kathleen Manley, Dennis Pearson, and Vincent Illuzzi, Defendants

O R D E R

This case arises from a pending criminal prosecution in

Vermont. Plaintiff Deborah Jean Beaton asserts that: (1) Judges

M . Kathleen Manley and Dennis Pearson violated her constitutional

rights by presiding over her case without first being lawfully

commissioned and filing oaths of allegiance to the Vermont

Constitution; and (2) State’s Attorney Vincent Illuzzi violated

her constitutional rights by prosecuting the case against her

without first filing an oath of allegiance. Before the court are

motions to dismiss filed by Judges Manley and Pearson (document

n o . 2 ) and by State’s Attorney Illuzzi (document n o . 4 ) .

Plaintiff objects. For the reasons given below, this case shall be transferred to the United States District Court for the

District of Vermont.

The following facts are drawn from plaintiff’s pro se

complaint, liberally construed. See Donovan v . Maine, 276 F.3d

8 7 , 94 (1st Cir. 2002) (“pro se pleadings are to be liberally

construed”) (citing Johnson v . Rodriguez, 943 F.2d 1 0 4 , 107 (1st

Cir. 1991)). State’s Attorney Illuzzi is currently prosecuting

Beaton for attempted unlawful trespass in state court. Judges

Manley and Pearson have presided over her case. Neither Judge

possesses a valid judicial commission, as required by the Vermont

Constitution. Neither the two judges nor Illuzzi have “take[n],

subscribe[d] and file[d] into the public record the official oath

of allegiance to the Constitution of Vermont.” (Compl. ¶ 2.)

Defendants move to dismiss on grounds o f : (1) lack of

personal jurisdiction, F E D . R . C I V . P . 12(b)(2); (2) improper

venue, F E D . R . C I V . P . 12(b)(3); (3) failure to state a claim on

which relief could be granted, F E D . R . C I V . P . 12(b)(6); and (4)

application of the Younger abstention doctrine. Because venue is

2 not proper, and because improper venue is dispositive, the court

need not reach defendants’ other grounds.

The applicable federal venue statute 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). In addition, “[t]he district court of a

district in which is filed a case laying venue in the wrong

division or district shall dismiss, or if it be in the interest

of justice, transfer such case to any district or division in

which it could have been brought.” 28 U.S.C. § 1406(a).

Finally, it is plaintiff’s burden to demonstrate that venue is

proper in the district in which she brings suit. Ferrofluidics

Corp. v . Advanced Vacuum Components, Inc., 789 F. Supp. 1201,

1206 (D.N.H. 1992) (citing Lex Computer & Mgmt. Corp. v . Eslinger

3 & Pelton, P . C . , 676 F . Supp. 399, 406 ( D . N . H . 1987); 15 CHARLES

ALAN WRIGHT, ARTHUR R . MILLER & EDWARD H . COOPER, FEDERAL PRACTICE AND

PROCEDURE § 3826 (Supp. 1992); Delta Educ., Inc. v . Langlois, 719

F . Supp. 4 2 , 49 (D.N.H. 1989)). Beaton has failed to establish

that venue is proper in this forum.

All three defendants are residents of Vermont. (Illuzzi

Aff. ¶ 2 ; Manley Aff. ¶ 2 ; Pearson Aff. ¶ 2 ) . Thus, venue in

the District of New Hampshire may not be grounded on 28 U . S . C .

§ 1391(a)(1), which points, instead, toward the District of

Vermont. The events or omissions giving rise to plaintiff’s

claims – namely the procedures under which defendants took their

respective public offices – all occurred in Vermont. Thus, venue

in New Hampshire may not be grounded on 28 U . S . C . § 1391(a)(2),

which also points toward Vermont. And because venue in the

District of Vermont is proper under both §§ 1391(a)(1) and

1391(a)(2), venue in the District of New Hampshire may not be

grounded on 28 U . S . C . § 1391(a)(3).

Because venue is not proper in the District of New

Hampshire, plaintiff’s claim is dismissed, without prejudice to

4 plaintiff’s refiling in the District of Vermont, or some other

appropriate district, as plaintiff deems advisable. 28 U.S.C.

§ 1406(a). Accordingly, Judges Manley and Pearson’s motion to

dismiss (document n o . 2 ) and State’s Attorney Illuzzi’s motion to

dismiss (document n o . 4 ) are both granted. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 1 2 , 2003

cc: Deborah Jean Beaton William Edward Whittington, IV, Esq. Daniel J. Mullen, Esq. David R. Groff, Esq.