Keaveney v. Larimer

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 19, 2000
• Docket: 00-2213
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 19 2000 TENTH CIRCUIT PATRICK FISHER Clerk

BARRY F. KEAVENEY,

Plaintiff-Appellant, v.

BISBEE, AZ, POLICE OFFICER LARIMER; JANE DOE LARIMER; BISBEE, AZ, POLICE OFFICER No. 00-2213 BAGBY; JANE DOE BAGBY; (D.C. No. CIV-00-164 LCS) BENNIE SCOTT, Bisbee, AZ, Police (Dist. N.M.) Detective; JANE DOE SCOTT; BISBEE, AZ, POLICE CHIEF ELKINS; JANE DOE ELKINS; TOM WHEELER, Former Mayor; JANE DOE WHEELER,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Barry Keaveney filed this action under 42 U.S.C. § 1983 against four police

officers, the former mayor of Bisbee, Arizona, and their wives. He alleged

violations of his First, Second, Fourth, and Fourteenth Amendment rights. This

case stems from an ongoing dispute between Keaveney and the government of

Bisbee that has already been the subject of a lawsuit in Arizona state court. The

Scotts, Elkinses, and Wheelers, among the defendants in this case, were

defendants in the Arizona case as well. They were dismissed from the state case

because the statute of limitations had run. The record does not show how the case

terminated as to the other Arizona defendants.

Keaveney brought this action in the District of New Mexico, where he now

resides. After Defendants informed him that they were not subject to personal

jurisdiction in New Mexico, he moved to transfer the case to the District of

Arizona. The district court denied this motion and dismissed the case without

prejudice, noting that Keaveney had presented no “basis for a reasonable belief

that this Court could obtain personal jurisdiction over any of the Defendants” and

that the case appeared to be futile because of the prior state lawsuit. Keaveney

filed a motion for reconsideration, essentially arguing that he had not been aware

of the requirements of personal jurisdiction. 1 The district court denied this motion

1 In his reply to Defendants’ opposition to that motion, Keaveney also asserted that Arizona’s statute of limitations is unconstitutional. The district court (continued...)

-2- as well, noting that Fed. R. Civ. P. 4(k) put Keaveney on notice of these

requirements.

We construe Keaveney’s pro se appeal as challenging the district court’s

denial of his motions to transfer and for reconsideration. Although his brief also

seems to argue the merits of his lawsuit, without personal jurisdiction over

Defendants we may not consider these arguments. See OMI Holdings, Inc. v.

Royal Ins. Co. of Canada, 149 F.3d 1086, 1090 (10th Cir. 1998).

When a case is filed in the wrong venue, the district court “shall dismiss, or

if it be in the interest of justice, transfer such a case” to the proper venue. 28

U.S.C. § 1406(a). We review the decision to dismiss rather than transfer for clear

abuse of discretion. See Cote v. Wadel, 796 F.2d 981, 985 (7th Cir.1986). There

is no dispute that New Mexico was the wrong venue in this case, since the

defendants reside in Arizona and all of the relevant events took place there. See

28 U.S.C. § 1391(b). As we have previously noted, other circuits have recognized

that it is not a clear abuse of discretion for the district court to deny a transfer

where “a plaintiff either realized or should have realized that the forum in which

he or she filed was improper.” Trierweiler v. Croxton & Trench Holding Corp., 90

F.3d 1523, 1544 (10th Cir. 1996); see also, e.g., Nichols v. G.D. Searle & Co.,

1 (...continued) did not address this argument.

-3- 991 F.2d 1195, 1202 (4th Cir. 1993); Spar, Inc. v. Information Res., 956 F.2d

392, 395 (2d Cir. 1992); Cote, 796 F.2d at 985. This is so even if the statute of

limitations would now prevent the plaintiff from filing in the proper forum. See,

e.g., Cote, 796 at 985. 2 We therefore affirm the district court’s decision to dismiss

the case rather than transfer it.

Keaveney’s pro se status does not excuse his obligation to comply with the

procedural rules, including jurisdiction and venue, that apply to all litigants. Cf.

Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). This is not a case

in which jurisdiction and venue turned on “the existence of some elusive fact”

about which Keaveney made an “erroneous guess.” Cf. Goldlawr, Inc. v. Heiman,

369 U.S. 463, 466, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962). Rather, the error here

was obvious. This is not to say that the district court could not have transferred

Keaveney’s case had it chosen to do so. We hold only that when a plaintiff “has

committed an obvious error and the district court does not find that the transfer

would serve the interest of justice, we will not disturb its exercise of discretion.”

Cf. Nichols, 991 F.2d at 1202 n.6.

We review the denial of a motion for reconsideration for abuse of

discretion. See Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994). Because

2 We express no opinion on whether Arizona’s statute of limitations would now bar Keaveney’s action. We also decline to address Defendants’ argument that this case is precluded by the Arizona lawsuit.

-4- it was filed within ten days of the district court’s order dismissing the complaint,

we construe the motion as one to alter or amend a judgment under Fed. R. Civ. P.

59(e). See id. We affirm the denial of this motion for substantially the reasons

stated by the district court. We note Keaveney submitted several new exhibits,

three statements that he had made to police and two Arizona statutes. Even if

these exhibits could be characterized as newly discovered evidence, which we

doubt, they are not relevant to the district court’s disposition of the case.

We therefore AFFIRM the district court’s orders.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge

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