United States v. Rescino

Background

The United States brought this action to enforce an Internal Revenue Service summons. The summons required Nicholas C. Rescino to provide testimony and documents. The opinion states that Rescino did not appear for two scheduled appointments and did not provide the required documents.

The court previously adopted a recommendation that the petition be granted and issued an order enforcing the summons. The United States later sought an order requiring Rescino to explain why he should not be held in contempt, stating that he had not certified that he produced all responsive materials and that he gave contradictory deposition testimony. The contempt-related show-cause hearing remained scheduled for October 7, 2021.

Rescino’s Motion

Rescino moved to dismiss under Federal Rule of Civil Procedure 12(b)(3), which permits a party to challenge an action filed in the wrong venue. Alternatively, he sought transfer from the San Jose Division to the San Francisco Division under 28 U.S.C. §§ 1406(a) or 1404(a). Under Section 1406(a), a court may dismiss or transfer a case filed in the wrong venue. Under Section 1404(a), a court may transfer a case for convenience and in the interest of justice when the statutory requirements are met.

Improper Venue

The court held that venue was proper in the San Jose Division. Rescino did not argue that venue was improper in the Northern District of California as a whole; he argued that the case belonged in the San Francisco Division instead. The court relied on Civil Local Rule 3-2(c), which excludes federal tax suits from the District’s division-specific assignment rule and permits those suits to be heard in any division of the District.

The court therefore denied Rescino’s motion to dismiss or transfer based on improper venue. Because it concluded that venue was proper, it did not decide the United States’ argument that Rescino had waived his venue challenge by waiting to raise it.

Transfer for Convenience

The court also denied Rescino’s request for transfer under Section 1404(a). Rescino argued that attending proceedings in San Jose would burden him and witnesses because of time away from his business and other activities. The court found that argument unpersuasive because this summons-enforcement action would not involve a trial. The court also noted that Rescino had scheduled his own motion for a hearing in the San Jose Division on the same date as the show-cause hearing.

Rescino also argued that his books and records were in San Francisco. The court found that he had not shown that the records needed to be transported to San Jose. At that point, he needed to file a response to the contempt-related order, which could be done online, and appear at the show-cause hearing.

Disposition

The court denied Rescino’s motion in its entirety. It vacated the hearing on that motion, left the October 7, 2021 show-cause hearing scheduled before Judge Beth Labson Freeman, and terminated the docket entry associated with the motion.