Hart v. US Department of the Treasury et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kenneth Hannibal Hart
v. Civil No. 14-cv-421-LM
United States Department of the
Treasury et al.
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Kenneth Hannibal
Hart’s motion to amend the complaint, or in the alternative,
motion for extension of time to file a proposed complaint
amendment (doc. no. 39). The portion of the motion seeking an
extension of time to file a proposed amended complaint is denied
without prejudice in an Order issued this date. For reasons
stated below, the district judge should deny the motion to
amend, as it is clear that the proposed complaint amendment
would be futile.
Background
In the original complaint in this action, Hart asserted
that unknown government agents published false information in
Hart’s criminal record. See Jan. 26, 2015, Order (doc. no. 14),
slip. op. at 3-4. Because the court considered it possible that
Hart could allege sufficient new facts to state a claim arising
out of the scant allegations in the original complaint, the
Case 1:14-cv-00421-LM Document 43 Filed 01/11/16 Page 1 of 5

2
court granted Hart leave to file an amended pleading by May 31,
2015. See Jan. 26, 2015, Order (doc. no. 14); Mar. 18, 2015,
Order (extending amended pleading deadline to May 31, 2015).
The instant motion to amend (doc. no. 39), filed by Hart in
late December 2015, seeks additional time, until February 29,
2016, for Hart to file a complaint amendment relating to his
false criminal records defamation claim. In requesting
additional time, Hart asserts new facts relating to his claim.
Hart alleges that fabricated New York “burglary third” and
“assault-second” convictions, and false New York arrest records,
affected the sentence he has been serving in New Hampshire since
2000 for unrelated New Hampshire convictions. Hart asserts that
the defendants he would name to his defamation claims, and the
witnesses he would call in this case, would be New York
prosecutors and attorneys from Manhattan and the Bronx who
represented him, as well as New York judges and court clerks.
Hart intends to produce New York court records and subpoena New
York police records as evidence. See Doc. No. 39, at 3. In
other words, all of the defendants, witnesses, and evidence as
to Hart’s proposed defamation claims would come from New York
and would relate to records of arrests and prosecutions
occurring more than fifteen years ago in New York.
Case 1:14-cv-00421-LM Document 43 Filed 01/11/16 Page 2 of 5

3
Discussion
I. Standard
Federal Rule of Civil Procedure 15(a) allows a party to amend
a pleading “once as a matter of course,” within twenty-one days
after service of a responsive pleading, and that the court “should
freely give leave when justice so requires.” A proposed amendment
seeking to add new parties “is technically governed by [Federal
Rule of Civil Procedure] 21,” but the “same standard of liberality”
applies under either rule. Garcia v. Pancho Villa’s of Huntington
Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010) (citations and
internal quotation marks omitted).
The court may deny a motion to amend “‘for any adequate reason
apparent from the record,’” including futility of the proposed
amendment. Todisco v. Verizon Commc’ns, Inc., 497 F.3d 95, 98 (1st
Cir. 2007) (citation omitted). The standard applied in assessing
futility is the same standard applied in the preliminary review of
the original complaint, under 28 U.S.C. § 1915A, which is set forth
in the November 19, 2014, Report and Recommendation (doc. no. 8).
II. Venue
Venue is appropriate in the judicial district where all of
the defendants reside, or where a substantial part of the events
giving rise to the plaintiff’s claims occurred. 28 U.S.C.
Case 1:14-cv-00421-LM Document 43 Filed 01/11/16 Page 3 of 5

4
§ 1391(b). Where the defense of improper venue is “‘obvious
from the face of the complaint and no further factual record is
required to be developed,’” the court may, sua sponte, dismiss
the case. Cox v. Rushie, No. CA 13-11308-PBS, 2013 U.S. Dist.
LEXIS 86794 at *14, 2013 WL 3197655 at *4 (D. Mass. June 18,
2013) (quoting Trujillo v. Williams, 465 F.3d 1210, 1217 (10th
Cir. 2006)); see also Wilkinson v. Sec’y, Fla. Dep’t of Corrs.,
No. 14-11239, 2015 U.S. App. LEXIS 12160 at *4-*5, 2015 WL
4269267 at *2 (11th Cir. July 15, 2015) (court may dismiss a
matter, sua sponte, for defective venue, pursuant to 28 U.S.C.
§ 1915, after providing plaintiff with opportunity to object).
Additionally, a court may deny a motion to amend on the ground of
futility if the motion seeks to add claims as to which venue is not
proper. See Cole v. Boeing Co., 621 F. App’x 10, 12 (D.C. Cir.
2015).
Hart raises claims alleging violations of state defamation
law against defendants in New York, for acts and omissions
alleged to have occurred in New York. Accordingly, venue is not
proper in this court, and the motion to amend should be denied
to the extent it seeks leave to add such claims.1
1This court need not determine whether Hart should be deemed
to be entitled to amend the complaint as of right, in deciding
whether to accept this Report and Recommendation. If Hart were
Case 1:14-cv-00421-LM Document 43 Filed 01/11/16 Page 4 of 5

5
Conclusion
For the foregoing reasons, Hart should not be permitted to
proceed in this court on his proposed defamation claims, where
venue is improper, and for that reason, Hart’s motion to amend
(doc. no. 39) should be denied. Any objections to this Report
and Recommendation must be filed by February 29, 2016. See Fed.
R. Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 11, 2016
cc: Kenneth Hannibal Hart, pro se
allowed to amend the complaint to add the defamation claim, the
claim could not proceed without undergoing preliminary review
pursuant to 28 U.S.C. § 1915(e)(2) and LR 4.3(d)(1). In
conducting a preliminary review of the defamation claim, the
same Report and Recommendation would issue, recommending
dismissal of the defamation claim for lack of proper venue. In
the interest of judicial economy and to avoid unnecessarily
complicating the docket, this Report and Recommendation simply
recommends denial of the motion to amend (doc. no. 39).
Case 1:14-cv-00421-LM Document 43 Filed 01/11/16 Page 5 of 5