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D'AMICO v. TREAT

United States District Court, Northern District of Illinois, E.D


July 10, 1974

JAMES M.P. D'AMICO, PLAINTIFF,
v.
D. ALLEN TREAT, DEFENDANT.

The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendant's motion to dismiss the instant complaint.

This is purportedly a pro se civil rights action seeking to redress the alleged deprivation of the plaintiff's civil rights guaranteed by the United States Constitution and protected by the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 1985. The plaintiff alleges that this Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1331, 1332, and 1343.

The plaintiff, James M.P. D'Amico, is a citizen of the United States of America, a resident of the State of Illinois and an attorney at law licensed since 1960 to practice before the Supreme Court of the State of Illinois and the Federal District Court for the Northern District of Illinois.

The defendant D. Allen Treat was at all times relevant to the instant action the Medical Director of the Department of Human Resources and Development for the State of California.

The plaintiff, in his complaint, alleges, inter alia, the following facts:

  1. At all times relevant to the instant complaint the
     defendant D. Allen Treat was acting in his
     official capacity as Medical Director of the
     Department of Human Resources and Development for
     the State of California under color of that
     state's laws and was charged with the evaluation
     of prospective employees according to various
     standards established in personnel selection.

  2. Pursuant to the laws of the State of California
     the plaintiff was induced to apply for employment
     as a "Hearing Referee, Unemployment Insurance
     Appeals Board" pursuant to an announcement of the
     California State Personnel Board.

  3. On the 24th day of February, 1973, the plaintiff,
     pursuant to the acceptance of his application,
     completed a written examination in Sacramento,
     California and, thereafter successfully passed an
     oral examination in Sacramento, California on the
     14th day of June, 1973.

  4. On or about July 11th, 1973, the plaintiff was
     advised that he had been placed number 3 in rank
     among those taking the examination and had been
     placed upon a list of eligibles to be certified
     for any available vacancies.

  5. On the 12th day of October, 1973, the plaintiff
     was offered employment by Mr. Jack D. Clevenger,
     Chief Referee of the California Unemployment
     Appeals Board by telephone to the plaintiff, who
     was in the City of Chicago and State of Illinois.

  6. The offer of employment was accepted by the
     plaintiff on the 12th day of October, 1973, in the
     City of Chicago, State of Illinois as more fully
     set out in the letter of confirmation dated
     October 12, 1973.

  7. Pursuant to the offer and acceptance of employment
     the plaintiff was induced to notify his employer
     of his termination and acceptance of the position
     offered which was unequivocal on October 12, 1973.

  8. Thereafter, pursuant to request, the plaintiff
     underwent a thorough physical examination, the
     results of which were sent to the State of
     California, Department of Human Resources and
     Development for evaluation by its Medical
     Director, the defendant, D. Allen Treat.

  9. Contrary to the medical findings of the examining
     physician, Dr. John Caserta, that the plaintiff
     was physically fit, which report is in the
     exclusive possession of the defendant, the said
     defendant wilfully and maliciously refused to
     accept the certification of the examining
     physician and arbitrarily misused his position,
     rank or office to deprive the plaintiff of his
     Constitutional right to equal protection of the
     law as provided in the Fourteenth Amendment to the
     Constitution of the United States, by arbitrarily
     and maliciously imposing upon him a standard which
     was:

     a. different from the standard used in evaluating
     other applicants;

b. non-existent as no standards had ever been set;

     c. different from the standard as contained in the
     employment announcement requiring "a state of
     health consistent with the ability to perform the
     assigned duties of the class"; and

     d. totally and completely unrelated to the work
     and used solely as

     pretext to deprive him of his Constitutional
     rights.

  10. Plaintiff alleges that as a direct consequence
     and result of the act of the defendant hereinabove
     complained of plaintiff was deprived of employment
     and caused to lose great sums of money spent in
     efforts to secure the employment lost to him and
     did suffer much anxiety and embarrassment to his
     reputation and was required to spend substantial
     sums of money traveling to California to secure
     employment and seek adequate living accommodations
     in contemplation of employment.

The plaintiff seeks damages in the amount of fifty thousand dollars.

The defendant, in support of his motion to dismiss the instant complaint, contends that:

  1. This Court lacks jurisdiction over the person of
     the defendant in that the purported personal
     service of process in California was beyond the
     limits of effective service for this Court.
     Defendant is domiciled and resides in California
     and no federal or state statute supports the
     effectiveness of the purported service.

  2. This Court lacks proper venue over the instant
     action because the defendant does not reside in
     this district and the alleged cause of action did
     not arise within this district.

The plaintiff contends that the instant motion is not meritorious.

It is the opinion of this Court that this Court does not properly have venue over the instant action and that in the interests of justice the instant action should be dismissed without prejudice.

I. THIS COURT LACKS PROPER VENUE OVER THE INSTANT ACTION

Since the plaintiff brings the instant action as a self-styled civil rights action, it is clear that he does not intend that jurisdiction be solely on the basis of diversity of citizenship. While the precise basis for federal jurisdiction is not clearly spelled out in the pro se complaint, it would appear that plaintiff's claim is based at least in part upon the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 1985 and 28 U.S.C. § 1343 for which the applicable venue provision is 28 U.S.C. § 1391(b):

    "A civil action wherein jurisdiction is not founded
  solely on diversity of citizenship may be brought
  only in the judicial district where all defendants
  reside, or in which the claim arose, except as
  otherwise provided by law."

There is no applicable law with regard to venue under the Civil Rights Act of 1871 which would exempt this case from the general provision of 28 U.S.C. § 1391(b). See Keadle v. Benedict, 321 F. Supp. 1179 (E.D.Pa. 1970); Jimenez v. Pierce, 315 F. Supp. 365 (S.D.N.Y. 1970); Sutton v. City of Philadelphia, 286 F. Supp. 143 (S.D.N.Y. 1968). It is clear from the relevant pleadings that the defendant is domiciled and resides in the State of California and that the alleged claim arose in California where the defendant allegedly performed his wrongful acts and where the plaintiff applied for employment. It is clear that in this action the Federal District Court in the Northern District of Illinois is not the proper forum for the purposes of venue.

II. THE DEFENDANT HAS NOT WAIVED HIS OBJECTION TO VENUE IN THE
    INSTANT ACTION.

The plaintiff contends that the defendant's filing of an appearance and a "motion for enlargement of time" to answer or otherwise plead constituted a waiver of the defenses provided in Rule 12(b) of the Federal Rules of Civil Procedure. It is well settled that a timely objection to venue is one interposed after he has his attorney file an appearance on his behalf and before the defendant files an answer or other initial pleading. See Fallbrook Public Utility District v. U.S. District Court for the Southern District of California, 202 F.2d 942 (9th Cir. 1953). Cf. Mohr v. Raymond International, 337 F. Supp. 105 (S.D.N Y 1972). Since the instant defendant has not answered the complaint or filed an initial pleading before objecting to venue it is clear that his objection to venue is not waived by the filing of an appearance.

The purpose behind Rule 12(b) of the Federal Rules of Civil Procedure is to avoid the delay occasioned by successive motions and pleadings and to reverse the prior practice of asserting jurisdictional defenses by "special appearance." See Neifeld v. Steinberg, 438 F.2d 423 (3rd Cir. 1971). Rule 12 has abolished for the federal courts the age-old distinction between general and special appearances. A defendant need no longer appear specially to attack the Court's jurisdiction or venue. A defendant is no longer required to intone at the door of the federal courthouse those formalized ritual incantations in order that the defendant might in a legalistic way remain outside even while he steps within. A defendant may now enter openly in full confidence that if he prevails in his contentions he will not be compelled to remain in the courthouse and litigate an action which the court lacks jurisdiction or venue over. It is, thus, clear that the objection of the instant defendant to venue is meritorious and timely raised.

It is the opinion of this Court that in the interests of justice the instant action should be dismissed without prejudice so that the plaintiff would be free to not only cure any apparent defects in the service of process but also, if he desires, to appropriately analyze anew the instant complaint in light of that forum which has the proper venue over the instant action. See, e.g., Skilling v. Funk Aircraft Company, 173 F. Supp. 939 (W.D.Mo. 1959).*fn*

In passing, the Court will note that the defendant's contention that this Court lacks jurisdiction over the person of the defendant because the personal service on the defendant was defective is in reality a problem caused by the improper venue of this Court over the instant action and will be cured when the plaintiff files this action in the appropriate federal district court.

Accordingly it is hereby ordered that the defendant's motion to dismiss is granted and the cause is dismissed without prejudice.


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