United States District Court, S.D. Florida
PACIFIC SOLAR ENERGY, S.A. de C.V., Plaintiff,
UNITED STATES DEPARTMENT OF THE TREASURY, ACTING DIRECTOR OF THE OFFICE OF FOREIGN ASSETS CONTROL, OFFICE OF FOREIGN ASSETS CONTROL AND SECRETARY OF THE TREASURY, Defendants.
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS FOR IMPROPER VENUE AND TRANSFERRING CASE TO DISTRICT
G. COOKE, United States District Judge
Pacific Solar Energy brought this action against Defendants
United States Department of Treasury, Secretary of the
Treasury, Office of Foreign Assets Control
(“OFAC”), and Acting Director of OFAC, requesting
relief from OFAC's denial of Plaintiff's application
for a license releasing funds blocked under the Foreign
Narcotics Kingpin Designation Act (“Kingpin
Act”), 21 U.S.C. §§ 1901-1908. Defendants
subsequently filed the instant Motion to Dismiss for Improper
Venue or, in the Alternative, to Transfer
(“Defendants' Motion”) (ECF No. 18).
Plaintiff filed its Response in Opposition to Defendants'
Motion (ECF No. 27), and Defendants filed their Reply
Memorandum (ECF No. 28). After reviewing the pending Motion,
Plaintiff's Response and Defendants' Reply thereto,
the record, and the relevant legal authorities, I grant
Defendants' Motion in part and transfer the case to the
District of Columbia for the following reasons.
2015, Plaintiff sought to commence a project to install
approximately 75, 000 solar panels in a community in
Honduras. Compl., ECF No. 1, ¶ 15. On or about May 19,
2015, Plaintiff applied for an insurance policy with Seguros
Continental, S.A., a Honduran insurance company, which would
provide for $45.5 million in coverage for damage to solar
panels and equipment during the construction of the project
for a premium payment of $105, 028.05 from Plaintiff.
Id. at ¶¶ 16-17. On October 7, 2015,
Plaintiff wired the premium payment from its account at Banco
Santander International in Miami, Florida to the
Insurer's account at Banco Continental, S.A. Id.
at ¶ 18. On the same day, OFAC included Banco
Continental on its List of Specially Designated Nationals or
Blocked Persons under the Kingpin Act. Id. at ¶
19; Blackborow Decl., ¶ 12. Subsequently, Plaintiff
received notice that the transfer was blocked at U.S. Century
Bank. Compl., ¶ 20.
November 23, 2015, Plaintiff applied for a license to release
the blocked funds. Id. at ¶ 48. After Plaintiff
was notified that the OFAC Licensing Division could not
locate the record of the funds, Plaintiff confirmed with U.S.
Century Bank that the funds were blocked and then
re-submitted its application. Id. at ¶¶
49-50. On March 28, 2016, the Department of Treasury denied
Plaintiff's request to release the funds. Id. at
¶ 51. On June 2, 2016, Plaintiff sent a letter to OFAC
requesting reconsideration of the denial. Id. at
¶ 55. OFAC denied the request again on November 14,
2016. Id. at ¶ 58. The decisions regarding
Plaintiff's license application were handled by OFAC
staff in Washington, D.C. Blackborow Decl., ECF No. 18-1,
¶ 17. While OFAC maintains a small office of three
employees in Miami, Florida, two of the employees work only
on licensing issues pertaining to sanctions against Cuba and
do not work on issues related to the Kingpin Act.
Id. The third employee is part of OFAC's
Enforcement Division and does not work on licensing issues at
filed this action against Defendants to seek review of
OFAC's denial of its application for a license releasing
the blocked funds. Compl., ¶ 2. Subsequently,
Defendants' filed the underlying Motion.
Federal Rule of Civil Procedure 12(b)(3), a defendant can
file a motion to dismiss for improper venue. Once a defendant
moves to dismiss, the plaintiff bears the burden of showing
that venue is proper. See Delong Equipment Co. v.
Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th
Cir. 1988) (stating a plaintiff need only make a prima facie
showing of venue when no evidentiary hearing is held). While
a court must take the facts of the complaint as true, it is
only “to the extent they are uncontroverted by
defendant['s] affidavits.” Estate of Myhra v.
Royal Caribbean Cruises, Ltd., 695 F.3d 1233, 1239 (11th
Cir. 2012) (quoting Home Ins. Co. v. Thomas Indus.,
Inc., 896 F.2d 1352, 1355 (11th Cir.1990)). A court may
consider evidence outside the complaint while drawing all
reasonable inferences in favor of the plaintiff and making
any findings of fact necessary to resolve the motion.
Estate of Myhra, 695 F.3d at 1239;
Hemispherx, 669 F.Supp.2d at 1356.
district court finds a case is filed in the improper venue,
it “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) (2012). Rule 12(b)(3) and § 1406(a) allow
dismissal only when venue is “wrong” or
“improper.” Atlantic Marine Const. Co., Inc.
v. U.S. Dist. Court for Western Dist. of Texas, 134
S.Ct. 568, 577 (2013). “[T]he decision whether to
transfer a case is left to the sound discretion of the
district court . . . .” Roofing & Sheet Metal
Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d
982, 985 (11th Cir. 1982). “Transfer of a case is
generally considered to be more in the ‘interest of
justice' than outright dismissal of an action.”
Forbes v. Lenox Fin. Mortg., LLC, 2008 WL 2959727,
at *4 (S.D. Fla. July 30, 2008). If a district court chooses
to transfer a case, it must be to a venue in which the
plaintiff could have originally brought the action.
Manley v. Engram, 755 F.2d 1463, 1467 (11th Cir.
move to dismiss for improper venue or, in the alternative, to
transfer the case to the District of Columbia. Plaintiff
asserts venue is proper in the Southern District of Florida
under 28 U.S.C. § 1391(e)(1)(A) and §
Venue is improper under 28 U.S.C. §
§ 1391(e)(1)(A), venue is proper in any district where
“a defendant in the action resides.” For venue
purposes, a federal agency or officer resides where it
“performs its official duties.” Brahim v.
Holder, 2014 WL 2918598, at *2 (S.D. Fla. June 26,
2014); A.J. Taft Coal Co. v. Barnhart, 291 F.Supp.2d
1290, 1307 (N.D. Ala. 2003). Venue can properly lie in more
than one jurisdiction because officers and agencies may have
more than one residence. Brahim, 2014 WL 2918598, at
*2 (citing Bartman v. Cheney, 827 F.Supp. 1, 2
(D.D.C. 1993)); A.J. Taft Coal Co., 291 F.Supp.2d at
1307 (citing Bartman, 827 F.Supp. 2)). However, a
federal agency does not reside in a district merely because
it has a regional office in that district. Brahim,
2014 WL 2918598, at *2 (citing Reuben H. Donnelley Corp.
v. F.T.C., 580 F.2d 264, 267 (7th Cir. 1978)).
argue that venue is not proper in this District because the
residence of all the Defendants is Washington, D.C.
Specifically, the agency Defendants United States Department
of Treasury and OFAC contend that they have their
headquarters and perform their official duties in Washington,
D.C., making their residence Washington, D.C. Additionally,
the officer Defendants Secretary of the Treasury and the
Director of OFAC assert their residence is Washington, D.C.
because they perform a significant amount of their official