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Kalman v. Cortes

July 28, 2009

GEORGE KALMAN
v.
PEDRO A. CORTES, ET AL.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM

Plaintiff has filed a civil rights action challenging the constitutionality of Title 15, Pa. Cons. Stat. §1303(c)(2)(ii) precluding the use of blasphemy in a corporate name on grounds that it violates the Establishment Clause and the Free Speech Clause of the First Amendment to the United States Constitution. Plaintiff, who attempted to include the word "hell" in the name of a corporation he was forming, challenges the statute both on its face and as applied, seeking a declaratory judgment that it violates his constitutional rights, a permanent injunction prohibiting Defendant from enforcing it against himself or anyone else, and an award of actual damages and attorney's costs. Presently before this Court is Defendant's Motion to Dismiss Plaintiff's Complaint-pursuant to Federal Rule of Civil Procedure 12(b)(3)-or to transfer the suit to the Middle District of Pennsylvania-pursuant to 28 U.S.C. §1406(a) on grounds that venue is not properly laid in the Eastern District of Pennsylvania. Finding that venue is proper in this district, the Motion will be denied.

I. Background

A. Facts and Procedural History

On September 26, 2007, Plaintiff George Kalman, a resident of Downingtown, Pennsylvania, applied to the Commonwealth of Pennsylvania, Department of State, Corporation Bureau ("Department of State"), for a Certificate of Organization-under 15 Pa. C.S. §8913-for the limited liability film production and distribution company which he founded. As the company's CEO, Plaintiff maintains his principal place of business in Downingtown, within this district. In his September 2007 application, Plaintiff sought to name his company "I Choose Hell Productions, LLC"*fn1 , and to obtain the exclusive right to operate under this name. (Complaint ¶¶ 8-9). By a letter dated October 1, 2007, however, the Pennsylvania Department of State denied Plaintiff's application for violation of §1303(c)(2)(ii), which prohibits the incorporation of businesses under names that contain "[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." (Complaint ¶¶ 11-12). In this denial letter, John or Jane Doe-the Department of State employee who processed Kalman's application-quoted the specific statutory language of §1303 as the grounds for rejection. Doe returned the original application with this letter, and instructed Kalman to submit a "corrected filing" that requested a different business name. (Complaint ¶ 11). See Exhibit A.

Alleging that he needed to initiate his business, Plaintiff crossed out "I Choose Hell Productions, LLC" from his original application, replaced it with "I.C.H. Productions, LLC," and mailed the updated application to the Bureau on October 12, 2007. (Complaint ¶ 13). See Exhibit B. After receiving it on October 17, 2007, the Department of State certified "I.C.H. Productions, LLC" on December 3, 2007. (Complaint ¶¶ 14-15). Plaintiff has since operated his film company in Downingtown, Pennsylvania under this approved corporate name. (Complaint ¶¶ 4, 17). Nevertheless, he maintains his desire to operate under "I Choose Hell Productions, LLC," and would seek certification under this name if the Department of State were enjoined from enforcing §1303(c)(2)(ii). (Complaint ¶¶ 17-18). If Plaintiff chooses to ignore the Department of State's ruling and do business under his desired corporate name, he would be subject to an enforcement action brought by the Commonwealth's Attorney General.

Plaintiff filed his Complaint against Defendants on February 18, 2009. Defendants filed this Motion to Dismiss for Improper Venue, or Alternatively, to Transfer to the Middle District of Pennsylvania on April 16, 2009 (Doc. No. 4), to which Plaintiff responded on May 13, 2009 (Doc. No. 6). The Court held oral argument on July 23, 2009.

B. Parties' Contentions

Plaintiff is suing Doe and Pedro Cortes, the Secretary of the Commonwealth of Pennsylvania, in his official capacity of administering the Department of State, for the denial of his original application, as well as the subsequent operation of his business under the name "I.C.H. Productions, LLC." (Compl. ¶¶ 5, 6, 19). According to Plaintiff's Complaint, Doe was responsible for processing the original application, and Cortes' statutory responsibilities include the approval and licensing of business names according to the statutory rules laid out in §1303. (Compl. ¶ 5). Cortes is also specifically responsible for enforcing §1303(c)(2)(ii) and for incorporating it into administrative regulations. (Complaint ¶ 5). See 19 Pa. Admin. Code §17.5.

In its Motion to Dismiss, Defendant claims that venue is properly laid only in the Middle District of Pennsylvania because all the events giving rise to Plaintiff's suit occurred in Harrisburg, Dauphin County, which is located within that district's territorial boundaries. (Def.'s Memo. Law Support Mot. Dismiss for Improper Venue at 5). These events include the decision to reject Plaintiff's original application, and the "develop[ment], implement[ation] and enforce[ment]" of the challenged policy from Harrisburg. (Def.'s Memo. at 7)(citing Declaration of Martha Brown, ¶ 3)*fn2 . Defendant argues that when a statewide policy is challenged, venue is proper only in the district where it was written, not the district in which its impact is felt. (Def.'s Mem. at 6-7). As such, the alleged effect that §1303 had on Plaintiff's ability to exercise his freedom of expression in this district is insufficient compared to the numerous "actions, decisions, policies and practices" that occurred in Harrisburg. (Def.'s Memo. at 7-8). Furthermore, the Defendant's convenience is considered in choosing venue, not the Plaintiff's. (Id. at 8).

Plaintiff's response asserts that while the Middle District may be a proper venue for this suit, the Defendant's argument fails to refute that the Eastern District of Pennsylvania is also a proper venue. (Pl.'s Memo. Law Opp'n to Def.'s Mot. at 6). In support of this claim, Plaintiff states that several events occurred within the Eastern District of Pennsylvania, and are sufficient to vest proper venue here despite the development and implementation of the policy in the Middle District. Id. Specifically, Plaintiff's residence and principal place of business are in the Eastern District, (Compl. ¶ 4); he mailed his original application to register his business from his residence in the Eastern District, (Compl. ¶¶ 7-8, 11)(referencing Ex. A); he received the rejection letter in the same place, (Ex. A); he reapplied from the Eastern District under an alternate corporate name; he would be subject to an enforcement action in the Eastern District if he conducted business under his preferred name, see Pa. Cons. §1303(e); and, enforcement of this statute will continually affect his ability to operate his business under his desired name in the Eastern District. (Compl. ¶¶ 16 -- 17, 19). In addition, litigating this case in the Eastern District would not be unfair to or inconvenient for the Defendant. (Pl.'s Memo. at 8).

II. Jurisdiction

Since Plaintiff brought this action to vindicate his First Amendment civil rights under 42 U.S.C. ยง1983, this Court has jurisdiction pursuant ...


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