The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
YOLANDA MARIE CARRINGTON, )
)
Plaintiff, ) Case No. 21 C 3713
)
v. )
) Judge Robert W. Gettleman
THE ISRAEL EMERGENCY ALLIANCE d/b/a )
“StandWithUs,” a 501(c)(3) )
not-for-profit organization, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Yolanda Marie Carrington has brought a three count complaint against defendant
the Israel Emergency Alliance d/b/a “StandWithUs” asserting claims for common law defamation,
tortious interference with prospective economic advantage, and violations of plaintiff’s right of
publicity. Defendant has moved to dismiss under Fed. R. Civ. P. 12(b)(3) for improper venue,
and Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons that follow, the court
concludes that venue is improper and transfers the case under 28 U.S.C. § 1406(a) to the Central
District of California, where both parties agree venue is proper.
BACKGROUND
Plaintiff is an African American who is a citizen of North Carolina and claims to be an
observant Jew. Plaintiff is non-binary and uses the they/them pronouns. According to the
complaint, plaintiff is a community organizer working “full-time in the Jewish and Black
communities.” The complaint does not indicate where those communities are located. Among
plaintiff’s projects is “building Jewish solidarity for the Palestinian people and Palestinian
statehood.”
Defendant is a leading political organization that works to build support among the
American public for the Israeli government. According to the complaint, on June 15, 2021,
defendant posted a series of images of Plaintiff across various social media platforms including
Facebook, Twitter, and Instagram. Above plaintiff’s image was the banner “HORRIFIC
ANTISEMITISM.” Defendant also included a small picture of a tweet by plaintiff which the
complaint describes as plaintiff “mourning the death of Anne Frank at the hands of the Nazis.” It
is this tweet that plaintiff claims defendant referred to as horrific antisemitism. Several months
earlier plaintiff had tweeted that “the Nazis took [everything] away” from Anne Frank and that
Anne Frank was “a criminalized refugee [who was] incarcerated and killed [by the Nazis].”
Plaintiff claims that defendant knew that plaintiff was a community activist working for
Palestinian solidarity and wanted to damage plaintiff’s reputation. Several people associated
retweeted or amplified defendant’s statements. Plaintiff further claims that defendant used the
posts for fundraising purposes, posting links asking for donations to fight antisemitism, but admits
that the posts were removed the same day they were posted. Finally, plaintiff claims to have lost
92% of their income as a result of the posts.
DISCUSSION
Defendant has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(3), arguing that
venue is improper. Plaintiff bears the burden of establishing that venue is proper. See Zughni v.
Pena, 851 F.Supp. 300, 302 (N.D. Ill. 1994). On a motion to dismiss under Fed. R. Civ. P
12(b)(3) the court accepts all the allegations in the complaint as true, unless contradicted by the
defendant’s affidavits. Id. The court may also examine facts outside the complaint to determine
whether venue is proper and resolves all factual conflicts in the parties’ submissions in favor of the
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plaintiff, drawing any reasonable inferences from those facts in the plaintiff’s favor. Nagel v.
ADM Investor Services, Inc., 995 F.Supp. 837, 843 (N.D. Ill. 1998).
Venue in a civil action is governed by 28 U.S.C. § 1391(b), which provides that a civil
action may be brought in: 1) “a judicial district in which ant defendant resides, if all defendants are
residents of the State in which the district is located; or 2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim occurred . . ..” Residency for venue
purposes of any defendant entity with the capacity to sue or be sued in its common name is defined
as “any judicial district in which such defendant is subject to the court’s personal jurisdiction with
respect to the civil action in question . . ..” 28 U.S.C. § 1391(c)(2).
In the instant case, plaintiff has failed to establish venue under either §1391(b)(1) or (2).
Initially, defendant does not reside in this district because it is not subject to the court’s personal
jurisdiction as to the instant action. The court does not have general personal jurisdiction over
defendant because defendant is not “at home” here. See Goodyear Dunlop Tires Ops., S.A. v.
Brown, 564 U.S. 915, 919 (2011). Plaintiff is correct that defendant has an office in this district,
but defendant has presented an affidavit from its Chief Operating Officer indicating that it is a
small satellite office that is not responsible for any of defendant’s social media postings. Plaintiff
has not refuted these facts in any way. The court must accept as true any facts presented in
defendant’s affidavit that remains unrefuted by plaintiff. Interlease Aviation Investors II
(ALOHA) L.L.C. v. Vanguard Airlines, Inc., 262 F. Supp. 2d 898, 904 n.3 (N.D. Ill. 2003).
Because the facts giving rise to plaintiff’s complaint did not occur in this district, the court
concludes that defendant does not reside in the district.
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Plaintiff suggests that venue is proper under § 1391(b)(2), arguing that a substantial part of
the events giving rise to the claim occurred here. Specifically, plaintiff argues that they lost
business in Illinois. The complaint alleges that plaintiff lost some business as a result of
defendant’s posts but makes no mention of where that business was located. Indeed, the
complaint makes no mention of Illinois at all. Plaintiff resides in North Carolina. Plaintiffs
response brief indicates that plaintiff suffered reputational harm in Illinois, home of Jewish Voice
for Peace, but plaintiff has not submitted an affidavit or any other evidence to support that claim,
and nothing in the complaint would allow such an inference. Consequently, the court concludes
that plaintiff has failed to establish that venue is proper under §1391(b)(2).
CONCLUSION
For the reasons described above, the court concludes that venue is improper. Both parties
have asked the court to transfer this action to the Central District of California, where both
jurisdiction and venue are proper, rather than dismiss the action. Consequently, the court grants
defendant’s motion [Doc. 4] in part and transfers this action to the Central District of California
pursuant to 28 U.S.C. 1406(a).
ENTER:
United States District Judge
DATE: April 8, 2022