DULA v. U.S. DEPARTMENT OF JUSTICE et al

MOTION to Transfer Case and for Enlargement of Time to Respond to the Complaint

D.D.C.April 18, 2008

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) GARY DUEY DULA, ) ) Plaintiff pro se, ) ) v. ) Civil Action No. 08-0196 (RBW) ) U.S. DEPARTMENT OF JUSTICE, et al. ) ) Defendants. ) ____________________________________) DEFENDANT=S MOTION TO TRANSFER VENUE AND FOR ENLARGEMENT OF TIME TO RESPOND TO THE COMPLAINT Defendants, by and through undersigned counsel, move to transfer this case to the District of Maryland pursuant to 28 U.S.C. § 1404(a). Further, Defendants request that the deadline for filing a response to the complaint be deferred pending resolution of this motion to transfer, making their response due no sooner than 15 days after the Court issues an order resolving the transfer motion.1 In accordance with Local Civil Rule 7(m), counsel for Defendants contacted the Plaintiff to request Plaintiff’s position on this motion. Plaintiff opposes transfer and Defendants’ request for an enlargement. In support of this motion, Defendants refer the Court to the accompanying memorandum of points and authorities. A proposed Order consistent with this motion also is attached. Dated: April 18, 2008 Respectfully Submitted, /s/ ___________________________________ JEFFREY A. TAYLOR, D.C. BAR # 498610 United States Attorney 1 If the Court grants the transfer motion, no answer and/or response will be due in this Court, and the District of Maryland will determine the deadline for submitting an answer. Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 1 of 14 2 /s/ ___________________________________ RUDOLPH CONTRERAS, D.C. BAR #434122 Assistant United States Attorney /s/ ___________________________________ BRANDON L. LOWY Special Assistant United States Attorney 555 Fourth Street, NW Washington, DC 20530 (202) 307-0364 Attorneys for Defendants Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 2 of 14 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) GARY DUEY DULA, ) ) Plaintiff pro se, ) ) v. ) Civil Action No. 08-0196 (RBW) ) U.S. DEPARTMENT OF JUSTICE, et al. ) ) Defendants. ) ____________________________________) MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO TRANSFER VENUE AND FOR ENLARGEMENT OF TIME TO RESPOND TO THE COMPLAINT INTRODUCTION In this case Plaintiff seeks an immediate injunction against the National Security Agency (“NSA”), Central Intelligence Agency (“CIA”), and any other U.S. government agencies and any other parties acting on their behalf, as well as a Writ of Peremptory Mandamus and a demand for Specific Performance against the U.S. Department of Justice (“DOJ”).1 Plaintiff argues that there are ongoing violations of his Fourth Amendment Rights and other illegal actions perpetrated against him and his family by persons associated with Defendants NSA and CIA, as well as others believed to be acting on their behalf, including employees of two of Plaintiff’s previous employers.2 Although Plaintiff initiated this action in this Court, venue is more appropriate in the District of Maryland. The only nexus between this District and this case is the fact that the Department of Justice is headquartered in the District of Columbia. However, it is apparent that the lion’s share of the events giving rise to this complaint - namely, the Fourth Amendment violations alleged by Plaintiff in his Complaint - have allegedly transpired or are 1 Undersigned counsel notified the Court in its Notice of Appearance that he does not represent “any other U.S. government agencies and any other parties acting on their behalf,” as they have yet to be identified. 2 Plaintiff’s previous employers are not parties in this case. Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 3 of 14 4 transpiring in the District of Maryland. Additionally, Plaintiff resides in Maryland and the National Security Agency resides there as well. Accordingly, the District of Maryland is a more appropriate forum for this case, and the interests of justice support transfer. ARGUMENT I. THIS COURT SHOULD TRANSFER VENUE TO THE DISTRICT OF MARYLAND. A. This Case Has an Inadequate Nexus to Washington, D.C. This case is governed by the general venue statute, 28 U.S.C. § 1391, which establishes default rules for venue that apply to federal lawsuits where the underlying statutes do not specify their own venue rules. See 28 U.S.C. § 1391(a), (b), and (e) (each applying “except as otherwise provided by law.”). Section 1391 identifies three possible bases for venue for claims against federal government officials or agencies: (1) where a defendant resides; (2) the district where a substantial part of the events or omissions giving rise to the claim occurred; and (3) the district where the plaintiff resides if no real property is involved in the action. See id. § 1391(e). Plaintiff fails to allege specifically that venue is proper in this Court, but appears to rely on the first prong of this test because he listed defendants DOJ and CIA as being located in Washington, D.C. See Compl. p. 5. The locations of the CIA (incorrectly stated as Washington, D.C.) and DOJ do not provide a basis for venue in this Court. When a plaintiff bases his venue arguments solely on federal defendants’ presence in Washington D.C., the venue challenge should be examined “very closely.” Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). That close scrutiny has led courts in this District to transfer cases to a district with a closer nexus to the parties’ dispute. See id. (ruling Washington, D.C. was not the proper venue because the sole connection to Washington, D.C. Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 4 of 14 5 was the inclusion of the Director of the Federal Bureau of Prisons and the Attorney General in their official capacities); see also, e.g., Rosales v. United States, 477 F. Supp. 2d 213, 215-17 (D.D.C. 2007) (transferring case against federal agency to district in which the challenged events took place); Southern Utah Wilderness Alliance v. Norton, 315 F. Supp. 2d 82, 86-89 (D.D.C. 2005) (concluding environmental case should be transferred to Utah where D.C. officials only set general policies and did not make specific decisions being appealed); Joyner v. District of Columbia, 267 F. Supp. 2d 15, 20-21 (D.D.C. 2003) (holding that the case’s only connection to Washington, D.C. was the situs of named federal government defendants and transferring to a district with which the case had several connections). “Courts in this [C]ircuit must examine challenges to personal jurisdiction and venue carefully to guard against the danger that a plaintiff might manufacture venue in the District of Columbia.” Thomas v. Department of Defense, 2006 WL 1890009 (D.D.C. 2006) (Walton, J.) (citing Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C.Cir.1993). As was true in Cameron and Joyner, the acts and omissions at issue in this case allegedly occurred outside the District of Columbia. In this instant case, Plaintiff resides and works in the State and District of Maryland. See Complaint caption. He alleges that, inter alia, Defendants NSA and CIA have violated his Fourth Amendment Rights by taking actions including “illegal entry into residences, illegal searches and seizures of property from residences, illegal wiretaps and call redirection, intercept/alteration of U.S. mail and/or removal of mail from the system[,]” which presumably took place in the District of Maryland because the Plaintiff resides and works there. Complaint ¶ 7. Plaintiff also claims that he has made job-related visits to the headquarters Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 5 of 14 6 of the NSA and CIA, which are located in the Districts of Maryland3 and Virginia,4 respectively. Plaintiff does however demand specific performance on behalf of DOJ, which is headquartered in Washington, DC. Nevertheless, most of the action sought by Plaintiff, including “provid[ing] immediate protection to the Plaintiff and his family…, [restoring] and insur[ing] the Fourth Amendment Rights of the Plaintiff and his family”, as well as interfering in Plaintiff’s state level litigation would likely all take place in the District of Maryland. See Complaint ¶ 9. 5 Accordingly, the fact that one of the three defendants has offices in Washington, D.C. does not establish a sufficient connection to this District. B. The Factors Courts Consider When Determining Whether to Transfer A Case Pursuant to 28 U.S.C. Section 1404 Support Transfer to the District of Maryland. For the “convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). A threshold question is whether the case could have been brought in the district to which transfer is sought. See Stewart Organization v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citing Van Dusen v. Barrack, 376 U.S. 612, 613 (1964)). Courts must conduct a case- by-case analysis and balance the private interests of the parties with public interests such as efficiency and fairness to decide if transfer is proper. See id. at 29. The moving party bears the burden to establish that it is proper to transfer the case. See Trout Unlimited v. United States Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996) (citing Air Line Pilots Ass’n v. Eastern 3 See Reinbold v. Evers, 187 F.3d 348, 353 (4th Cir. 1999) (indicating that NSA is headquartered at Fort Meade, Maryland); see also Exhibit 1 (driving directions to the National Cryptologic Museum, in which its proximity to the NSA is depicted). 4 See Harbury v. Hayden, 444 F.Supp.2d 19, 31 (D.D.C. 2006) (indicating that CIA headquarters are in Langley, Virginia); see also Exhibit 2, Answer #11 (Frequently Asked Questions of the CIA, including its headquarters location). 5 Although Plaintiff’s allegations appear implausible, Defendants are not addressing the merits or the feasibility of the action sought by Plaintiff. Defendants would address these claims as necessary pending the resolution of this motion. Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 6 of 14 7 Air Lines, 672 F. Supp. 525, 526 (D.D.C. 1987)) (citations omitted). Mr. Dula could have brought this case in the District of Maryland, and both the private and public interests favor transfer to that court. 1. Plaintiff Could Have Brought This Case in the District of Maryland Because His Claim Arose in That Jurisdiction and He Resides There. Plaintiff clearly could have brought this case in the District of Maryland. As noted supra, venue is proper in the district where: (1) the defendant resides; (2) a substantial part of the events or omissions giving rise to the claim occurred; or (3) the plaintiff resides if no real property is involved in the action. See 28 U.S.C. § 1391(e). Plaintiff resides in the District of Maryland; and the principal defendants, the NSA and CIA, are located in the Districts of Maryland and Virginia, respectively. See n. 3, 4 supra. Further, a substantial part of the events or omissions giving rise to Plaintiff’s claim allegedly occurred in the District of Maryland, because Plaintiff claims Fourth Amendment violations stemming from “illegal entry into residences” and other actions described above, and Plaintiff resides in the District of Maryland. See Complaint ¶ 7. In addition, most if not all of the relief sought by Plaintiff of DOJ, including the provision of “immediate protection to the Plaintiff and his family”, the restoration and insurance of “the Fourth Amendment Rights of the Plaintiff and his family”, as well as interference in Plaintiff’s state level litigation would all take place in the District of Maryland. See Complaint ¶ 9. Finally, Plaintiff has another case pending the District of Maryland against the NSA and other private sector defendants, in which Plaintiff makes very similar allegations, such as that Defendants conducted, inter alia, “illegal searches, seizures, and thefts from Plaintiff’s residence.” Dula v. NSA, et al., 8:08-cv-00427-DKC (D. Md.). Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 7 of 14 8 2. The Private Interests Favor Transfer to the District of Maryland. Private interests also favor transfer. When assessing private interests, courts consider: plaintiff’s choice of forum, defendant’s choice of forum, whether the claim arose elsewhere, convenience of the parties, convenience of the witnesses, and ease of access to sources of proof. See Trout Unlimited v. United States Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996) (citation omitted). Although courts generally accord substantial deference to a plaintiff’s choice of forum, that deference is lessened when the forum chosen is not the plaintiff’s home forum. See Shawnee Tribe v. United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)). Courts also apply less deference when the chosen forum has an inadequate nexus to the events in the case. See Southern Utah Wilderness Alliance, 315 F. Supp. 2d at 86; Shawnee Tribe, 298 F. Supp. 2d at 24 (plaintiff’s choice given less deference when the action has no “meaningful ties” to the jurisdiction). a. Plaintiff’s Choice of Forum Deserves Little Deference. Plaintiff’s choice of forum deserves little deference because he does not reside in this District, and because this District “lacks meaningful ties to the controversy.” Southern Utah Wilderness Alliance, 315 F. Supp. 2d at 86. Plaintiff alleges that Defendants NSA and CIA violated his Fourth Amendment rights by allegedly committing acts that would have taken place in the District of Maryland because the Plaintiff resides and works there. See Complaint ¶ 7. Furthermore, most of the relief that Plaintiff seeks, including “provid[ing] immediate protection to the Plaintiff and his family…, [restoring] and insur[ing] the Fourth Amendment Rights of the Plaintiff and his family”, as well as interfering in Plaintiff’s state level litigation would all take Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 8 of 14 9 place in the District of Maryland. See Complaint ¶ 9. 6 DOJ has offices in Washington, D.C. and Plaintiff alleges that he sent letters to DOJ, but that standing alone does not establish a sufficient connection to this District. See Complaint ¶ 8. Accordingly, this case is similar to other cases in which courts have found that the private interests favor transfer, wherein collectively the facts demonstrate that another district (in the instant case, Maryland) has more meaningful ties to the litigation than does the District of Columbia, and the plaintiffs' choice of forum is entitled to less deference. See Montgomery v. STG Int'l, Inc., 532 F. Supp. 2d 29, 33 (D.D.C. 2008) (citing Barham v. UBS Fin. Servs., 496 F. Supp. 2d 174, 179 (D.D.C. 2007); Airport Working Group of Orange County, Inc. v. Dep't of Def., 226 F. Supp. 2d 227, 231 (D.D.C. 2002) (finding that when the connection between the controversy, plaintiff, and the forum are attenuated and lack a meaningful factual nexus, less deference is given). b. Defendants’ Choice of Forum Would Place This Case in a District With Strong Connections to Dula’s Case. The Court next considers Defendants’ choice of forum. Defendants have legitimate reasons for seeking transfer. The District of Maryland is where Mr. Dula resides. The District of Maryland has the strongest connection to the case because it is home to one of the principal defendants, which allegedly violated Plaintiff’s Fourth Amendment rights, and is the jurisdiction in which it is apparent that most of the alleged wrongdoing took place. Furthermore, Plaintiff has another case pending the District of Maryland against the NSA and other private sector defendants, in which Plaintiff alleges that Defendants conducted, inter alia, “illegal searches, 6 Although Plaintiff’s allegations appear implausible, Defendants are not addressing the merits or the feasibility of the action sought by Plaintiff in the motion. Defendants will address these claims as necessary pending the resolution of this motion. Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 9 of 14 10 seizures, and thefts from Plaintiff’s residence.” Dula v. NSA, et al., 8:08-cv-00427-DKC (D. Md.). 3. Transfer Would Serve the Public Interest. The public interest also favors transfer. The relevant considerations include: the transferee’s familiarity with governing laws, relative congestion of the calendars of the potential transferee and transferor courts, and local interests in deciding local controversies at home. See Trout Unlimited v. United States Dep’t of Agriculture, 944 F. Supp. 13, 16 (D.D.C. 1996) (citation omitted); Airport Working Group of Orange County, Inc., 226 F. Supp. 2d at 229. Since this action concerns federal law, the District of Maryland is as familiar with the applicable law as the District of Columbia. In addition, there is no evidence that the District of Maryland’s docket is more congested than the District of Columbia’s docket. See Exhibit 3. 7 Moreover, by granting the instant motion, the Court will promote judicial economy and consistency by permitting the District of Maryland to adjudicate these cases with identical plaintiffs, similar claims, and a defendant in common. All of these factors weigh in favor of transferring this case to the District of Maryland. II. THE DEADLINE FOR DEFENDANTS’ ANSWER SHOULD BE DEFERRED PENDING RESOLUTION OF THE TRANSFER MOTION. Defendants also move, pursuant to Federal Rule of Civil Procedure 6(b)(1), that the deadline for submitting their answer or other response to Plaintiff’s complaint be deferred pending resolution of this motion to transfer. Defendants’ answer currently is due April 21, 2008. Defendants request that their answer be due no sooner than 15 days after the Court issues an order resolving the motion to transfer venue. If the Court grants Defendants’ motion and transfers the case, the District of Maryland will determine when Defendants’ answer and/or 7 Exhibit 3: Federal Court Management Statistics 2007 - District Courts, available at http://www.uscourts.gov/cgi- bin/cmsd2007.pl (last visited Apr. 16, 2008). Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 10 of 14 11 response shall be due. If the Court denies the motion, Defendants would submit their answer or other response within 15 days of the Court’s order. There is good cause to enlarge this deadline. Defendants anticipate that they will file a dispositive motion pursuant to Federal Rule 12(b), in lieu of filing an answer. However, the Court will have to resolve the instant motion to transfer before determining whether to reach the merits of that dispositive motion. Further, if this case is transferred to the District of Maryland, the undersigned will not be counsel for Defendants, and the United States Attorney’s Office for the District of Maryland will assume responsibility for the case. The Assistant United States Attorney from that office will need time to become familiar with the case once the file is received. Accordingly, deferring the deadline for Defendants’ answer pending resolution of the motion to transfer would promote efficiency and conserve resources. CONCLUSION For the foregoing reasons, this Court should GRANT Defendants’ motion and transfer venue to the District of Maryland and GRANT Defendants’ motion for an enlargement of time to file an answer or otherwise respond to Plaintiff’s complaint. Dated: April 18, 2008. Respectfully Submitted, /s/ ___________________________________ JEFFREY A. TAYLOR, D.C. BAR # 498610 United States Attorney /s/ ___________________________________ RUDOLPH CONTRERAS, D.C. BAR #434122 Assistant United States Attorney Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 11 of 14 12 /s/ ___________________________________ BRANDON L. LOWY Special Assistant United States Attorney 555 Fourth Street, NW Washington, DC 20530 (202) 307-0364 Attorneys for Defendants Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 12 of 14 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) GARY DUEY DULA, ) ) Plaintiff pro se, ) ) v. ) Civil Action No. 08-0196 (RBW) ) U.S. DEPARTMENT OF JUSTICE, et al. ) ) Defendants. ) ____________________________________) ORDER Upon consideration of Defendants’ Motion to Transfer Venue and for Enlargement of Time to Respond to the Complaint, it is this _______ day of ________________, 2008, ORDERED that Defendants’ Motion be, and hereby is, granted; it is further ORDERED that: ____ this case be, and hereby is, TRANSFERRED to the District of Maryland; ____ Defendants’ Answer or other response to the complaint shall be due on a date to be set by the District of Maryland. SO ORDERED. _________________________________ United States District Judge Case 1:08-cv-00196-RBW Document 3 Filed 04/18/2008 Page 13 of 14 CERTIFICATE OF SERVICE I hereby certify that on this 18th day of April, 2008, I caused the foregoing Defendants= Motion to Transfer Venue and for Enlargement of Time to Respond to the Complaint and Order to be filed via the Court=s Electronic Case Filing system, and served upon plaintiff, pro se, by first-class mail, postage prepaid, addressed as follows: GARY DUEY DULA, Plaintiff pro se 6207 Tecumseh Place Berwyn Heights, MD 20740 /s/ __________________________________ BRANDON L. 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