                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
ESTATE OF HIMOUD                     )
SAED ABTAN, et al.,                  )
                                     )
                    Plaintiffs,      )
                                     )
      v.                             )    Civil Action No. 07-1831 (RBW)
                                     )
BLACKWATER LODGE                     )
AND TRAINING CENTER, et al.,         )
                                     )
                    Defendants.      )
____________________________________)
                                     )
ESTATE OF ALI HUSSAMALDEEN           )
ALBAZZAZ and                         )
ESTATE OF KADHUM KAYIZ AZIZ,         )
                                     )
                    Plaintiffs,      )
                                     )
      v.                             )    Civil Action No. 07-2273 (RBW)
                                     )
BLACKWATER LODGE                     )
AND TRAINING CENTER, et al.,         )
                                     )
                    Defendants.      )
____________________________________)


                                 MEMORANDUM OPINION

       The plaintiffs in these administratively consolidated civil lawsuits are individuals and

estates of individuals wounded or killed in one of two shooting incidents: a shooting that

occurred on September 9, 2007, in Al Watahba Square, Baghdad, in the Republic of Iraq, First

Amended Complaint in Albazzaz v. Blackwater Lodge and Training Ctr., Civil Action No. 07-
2273 (RBW) (D.D.C.) (the “Albazzaz Compl.”), ¶ 2, 1 or a shooting that occurred on September

16, 2007, in Nisour Square, Baghdad, Second Amended Complaint in Abtan v. Blackwater

Lodge and Training Ctr., Civil Action No. 07-1831 (RBW) (D.D.C.) (the “Abtan Compl.”), ¶¶ 4-

20. The plaintiffs seek compensatory and punitive damages against the defendants, Abtan

Compl. ¶ 3; Albazzaz Compl. ¶ 3, 2 claiming that the defendants are “liable for killing” the

decedents, whose estates have joined in this suit, liable for “the pain and suffering and loss of

consortium caused to the family members of these victims,” Abtan Compl. ¶ 82; Albazzaz

Compl. ¶ 60, and “liable for the physical and mental injuries caused” to the plaintiffs who

survived the Nisour Square shooting incident, Abtan Compl. ¶ 83. Currently before the Court is

the defendants’ consolidated motion to dismiss or transfer the plaintiffs’ cases for lack of venue

pursuant to Federal Rule of Civil Procedure 12(b)(3).3 Having carefully considered the

plaintiffs’ complaints, the defendants’ motion, and all memoranda of law and exhibits filed in

connection with that motion, 4 the Court concludes for the reasons that follow that it must stay the


1
  The Court granted the plaintiffs in Albazzaz leave to amend their initial complaint, but neglected to direct the
Clerk of the Court to docket Exhibit 1 to the plaintiffs’ motion as the plaintiffs’ first amended complaint. The Court
will therefore instruct the Clerk of the Court to docket Exhibit 1 of the plaintiffs’ motion as the first amended
complaint nunc pro tunc to the date when leave to file the amended complaint was granted and will treat the
proposed amended complaint attached as Exhibit 1 of the plaintiffs’ motion as the operative complaint in Albazzaz
for purposes of this memorandum opinion.
2
  The defendants are Blackwater Lodge and Training Center, Inc., Blackwater Target Systems, Blackwater Security
Consulting, and Raven Development Group (collectively “Blackwater”), Abtan Compl. ¶¶ 25-26; Albazzaz Compl.
¶¶ 10-11, as well as Erik Prince, who allegedly “owns and controls the various Blackwater entities,” Abtan Compl.
¶ 21; see also Albazzaz Compl. ¶ 6 (same), two holding companies “personally and wholly own[ed]” by Prince, The
Prince Group LLC and EP Investments, LLC, Abtan Compl. ¶¶ 21-22; see also Albazzaz Compl. ¶¶ 6-8 (same), and
two “companies through which Erik Prince [allegedly] conducts his mercenary business,” Greystone Ltd.
(“Greystone”) and Total Intelligence Solutions LLP (“Total Intelligence”), Abtan Compl. ¶ 26; Albazzaz Compl.
¶ 11.
3
 The plaintiffs have also filed separate motions for leave to file amended complaints. The Court will stay those
motions while the parties engage in any appropriate venue discovery the Court is authorizing.
4
  In addition to the plaintiffs’ complaints and the defendants’ motion, the Court considered the following documents
in reaching its decision: (1) Defendants’ Memorandum in Support of Their Motion to Dismiss for Lack of Venue the
Second Amended Complaint in Case No. 1:07-cv-01831 and the Amended Complaint in Case No. 07-cv-2273 (the
(continued . . . )


                                                          2
defendants’ motion so that the plaintiffs may formally request limited venue discovery in this

matter.

                                              I. Background

          The following facts are alleged by the plaintiffs in their complaints. “Blackwater

provides armed forces to protect Department of State personnel in Iraq.” Abtan Compl. ¶ 31;

Albazzaz Compl. ¶ 16. “These mobile armed forces,” allegedly referred to as “shooters,” Abtan

Compl. ¶ 31; Albazzaz Compl. ¶ 16, are allegedly “routinely sen[t]” by Blackwater “into the

streets of Baghdad with the knowledge that some of the ‘shooters’ are chemically influenced by

steroids and other judgment-altering substances,” Abtan Compl. ¶ 43; Albazzaz Compl. ¶ 21.

Specifically, Blackwater allegedly knew at the time of the shooting incidents in question that “25

percent or more of its ‘shooters’ were ingesting steroids or other judgment-altering substances,

yet failed to take effective steps to stop drug use,” such as “conduct[ing] any drug[]testing of its

‘shooters’ before sending them equipped with heavy weapons into the streets of Baghdad.”

Abtan Compl. ¶ 43; Albazzaz Compl. ¶¶ 22-23. In addition, Blackwater allegedly “has been

hiring as mercenaries former military officials known to have been involved in human rights

abuses in Chile,” Abtan Compl. ¶ 59; Albazzaz Compl. ¶ 38, and has allegedly “hired foreign

nationals without regard for the fact that they were forbidden by the laws of their country from

serving as mercenaries,” Abtan Compl. ¶ 60; Albazzaz Compl. ¶ 39.

          The result of these practices, according to the plaintiffs, is “a pattern and practice of

recklessness in the use of deadly force” by Blackwater. Abtan Compl. ¶ 41; Albazzaz Compl.

¶ 19. Blackwater forces allegedly “engage in the preemptive and offensive, rather than


“Defs.’ Mem.”), (2) Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Second Amended Complaint in
Case No. 1:07-cv-01831 and the Amended Complaint in Case No. 2:07-cv-02273 (the “Pls.’ Opp’n”), and (3)
Defendants’ Reply in Support of Their Motion to Dismiss for Lack of Venue the Second Amended Complaint in
Case No. 1:07-cv-01831 and the Amended Complaint in Case No. 07-cv-2273 (the “Defs.’ Reply”).



                                                      3
defensive, use of lethal force,” Abtan Compl. ¶ 47; Albazzaz Compl. ¶ 27, such as “repeatedly

and frequently fir[ing] shots from moving vehicles without stopping to see if Blackwater has

killed anyone,” Abtan Compl. ¶ 53; Albazzaz Compl. ¶ 32. Allegedly, one former Blackwater

shooter “stated that his 20-person team in Iraq averaged four to five shootings per week.” Abtan

Compl. ¶ 55; Albazzaz Compl. ¶ 34.

       According to the plaintiffs, Blackwater does not discourage its shooters from engaging in

this activity. To the contrary, it allegedly “views its willingness to kill innocent people as a

strategic advantage setting Blackwater apart and above other security corporations,” Abtan

Compl. ¶ 57; Albazzaz Compl. ¶ 36; thus, it “benefits financially from its willingness to kill

innocent bystanders,” Abtan Compl. ¶ 58; Albazzaz Compl. ¶ 37. To effectuate this policy,

Blackwater allegedly attempted “on one or more occasions . . . to cover up its shooters’ killings

by offering to pay modest sums to the families of those Iraqis whom Blackwater shooters shot

for no reason,” Abtan Compl. ¶ 52; Albazzaz Compl. ¶ 31, and “Blackwater shooters and other

employees repeatedly fail to report [the] wrongful use of force, and consistently lie about

excessive uses of force,” Abtan Compl. ¶ 54; Albazzaz Compl. ¶ 32.

       The plaintiffs’ claims arise out of two such incidents. First, “[o]n September 9, 2007,

heavily-armed Blackwater mercenaries . . . [allegedly] fired, without justification, on a crowd of

innocent Iraqi persons in and around Al Watahba Square[,] resulting in multiple deaths and

injuries.” Albazzaz Compl. ¶ 2. The decedents whose estates have filed suit in Albazzaz were

both allegedly killed in this shooting, id. ¶¶ 4-5, 17, as were “[n]umerous other innocent

persons,” id. ¶ 17. The plaintiffs in Albazzaz allege that “Blackwater is responsible” for this

incident, and further allege that “[t]he identities of the Blackwater shooters who killed and

injured persons on September 9, 2007, are known to Blackwater.” Id. ¶ 18.




                                                  4
       The second shooting incident at issue in these civil lawsuits occurred just one week later.

Abtan Compl. ¶ 2. Once again, “heavily-armed Blackwater mercenaries” allegedly opened fire

“on a crowd of innocent civilians without justification.” Id. ¶ 2. And once again, this shooting

allegedly “result[ed] in multiple deaths and injuries.” Id. Six plaintiffs in Abtan are the estates

of individuals who were killed in the shooting; the remaining plaintiffs “were among those

seriously injured.” Id.

       As alleged by the plaintiffs in Abtan, “none of the civilians [were] armed or taking

offensive actions against the Blackwater shooters,” id. ¶ 34, and “Blackwater shooters were not

protecting any State Department official,” id. ¶ 36. Indeed, the plaintiffs in Abtan allege that

Blackwater shooters were “expressly directed . . . to stay with the official” they were guarding at

the time, id. ¶ 37, and that “[o]ne of Blackwater’s own shooters tried to stop his colleagues from

indiscriminately firing upon the crowd of innocent civilians” without success, id. ¶ 39. The

plaintiffs in Abtan allege that “Blackwater is responsible” for this second shooting incident as

well, and further allege that “[t]he identities of the Blackwater shooters who killed and injured

innocent persons on September 16, 2007, are known to Blackwater.” Id. ¶ 40.

       The plaintiffs in Abtan filed their initial complaint in this Court on October 11, 2007, and

filed an amended complaint on November 28, 2007. The plaintiffs in Albazzaz followed suit

with their own complaint on December 19, 2007. The defendants moved to dismiss both of these

complaints for lack of venue, but those motions were denied without prejudice when the

plaintiffs filed amended complaints in both cases.

       In their most recent complaints (the second amended complaint in Abtan; the first

amended complaint in Albazzaz), the plaintiffs assert six different causes of action against the

defendants: war crimes under the Alien Tort Claims Act (Alien Tort Statute), 28 U.S.C. § 1350




                                                  5
(2006), Abtan Compl. ¶¶ 85-90; Albazzaz Compl. ¶¶ 62-67, assault and battery, Abtan Compl.

¶¶ 91-96; Albazzaz Compl. ¶¶ 68-73, wrongful death, Abtan Compl. ¶¶ 97-100; Albazzaz

Compl. ¶¶ 74-77, intentional infliction of emotional distress, Abtan Compl. ¶¶ 101-04; Albazzaz

Compl. ¶¶ 78-81, negligent infliction of emotional distress, Abtan Compl. ¶¶ 105-08; Albazzaz

Compl. ¶¶ 82-85, and negligent hiring, training, and supervision, Abtan Compl ¶¶ 109-11;

Albazzaz Compl. ¶¶ 86-88. The plaintiffs seek not only compensatory damages, Abtan Compl.

¶ 112(a); Albazzaz Compl. ¶ 89(a), but also “punitive damages in an amount sufficient to strip

[the d]efendants of all of the revenue and profits earned from their [alleged] pattern of constant

misconduct and callous disregard for human life,” Abtan Compl. ¶ 112(b); Albazzaz Compl.

¶ 89(b), and “any attorney’s fees and costs permitted by law,” Abtan Compl. ¶ 112(c); Albazzaz

Compl. ¶ 89(c). The plaintiffs also allege that “venue is proper” in this Court “pursuant to 28

U.S.C. § 1391(a)(3) and § 1391(b)(2).” Abtan Compl. ¶ 30; Albazzaz Compl. ¶ 15.

       The defendants renewed their requests for dismissal in a consolidated motion filed on

April 8, 2008. In support of that motion, the defendants argue that the plaintiffs cannot establish

that this Court is the proper venue for their lawsuit under 28 U.S.C. § 1391(a)(3) because that

provision applies only to actions founded completely on diversity of citizenship, which is not the

case here. Defs.’ Mem. at 2-3. They further argue that 28 U.S.C. § 1391(b)(2) does not provide

a basis for venue in this Court because this lawsuit does not involve any property located in this

jurisdiction and the events giving rise to the plaintiffs’ claims did not occur in the District of

Columbia. Id. at 3-5. The defendants therefore urge the Court to dismiss the plaintiffs’

complaints, id. at 10-13, and request in the alternative “that this Court transfer these cases to a

court where venue is proper[;] namely[,] [the Eastern District of Virginia],” id. at 13; see also id.




                                                   6
at 5-10 (arguing that the Eastern District of Virginia would be an appropriate venue for the

plaintiffs’ lawsuits).

        The plaintiffs do not contest the defendants’ legal arguments regarding venue under

§ 1391(a)(3). However, they assert that they “are entitled to deference on their forum choice so

long as they select a venue permitted by § 1391(b),” Pls.’ Opp’n at 6, and argue at length that

venue is proper in this Court under § 1391(b)(2) because numerous events relating to the causes

of action at issue here occurred in the District of Columbia, id. at 6-10. Alternatively, they

contend that they “are entitled to discovery to establish additional facts supporting their forum

choice if factual issues raise questions regarding the [p]laintiffs[’] chosen venue.” Id. at 10. The

plaintiffs also oppose transfer of these cases to the Eastern District of Virginia. Id. at 11-13. In

reply, the defendants dispute the plaintiffs’ assertion of venue under § 1391(b), Defs.’ Reply at

1-11, renew their request for dismissal of the plaintiffs’ complaints, id. at 14-15, and oppose the

plaintiffs’ request for venue discovery, which they view as “a way to forestall this Court’s

dismissal or transfer of these cases,” id. at 13.

                                       II. Standard of Review

        As the Court previously noted, the defendants’ motion to dismiss or transfer for lack of

venue is governed by Federal Rule of Civil Procedure 12(b)(3). “Unless there are pertinent

factual disputes to resolve, a challenge to venue presents a pure question of law for the Court.”

Modaressi v. Vedadi, 441 F. Supp. 2d 51, 53-54 (D.D.C. 2006). Thus, “[i]n considering a Rule

12(b)(3) motion, the [C]ourt accepts the plaintiff’s well-pled factual allegations regarding venue

as true, draws all reasonable inferences from those allegations in the plaintiff’s favor, and

resolves any factual conflicts in the plaintiff’s favor.” Darby v. U.S. Dep’t of Energy, 231 F.

Supp. 2d 274, 276 (D.D.C. 2002). Ultimately, however, “it is the plaintiff’s obligation to




                                                    7
institute the action in a permissible forum;” consequently, “the plaintiff usually bears the burden

of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003).

                                                III. Legal Analysis

         Pursuant to 28 U.S.C. § 1406, “[t]he district court of a district in which is filed a case

laying venue in the wrong division or district shall dismiss or, if it be in the interests of justice,

transfer such case to any district or division in which it could have been brought.” Id. § 1406(a).

By failing to oppose the defendants’ argument that this Court is not an appropriate venue for the

plaintiffs’ lawsuit under 28 U.S.C. § 1391(a)(3), the plaintiffs have conceded this point to the

defendants. 5 Thus, the only questions before the Court are whether this Court is an appropriate

venue for the plaintiffs’ lawsuit under 28 U.S.C. § 1391(b)(2) and, if not, whether the “interests

of justice” warrant a transfer of the plaintiffs’ lawsuits rather than outright dismissal.

         Section 1391(b)(2) provides that for civil actions not founded solely on diversity of

citizenship, such an action “may . . . be brought only in . . . a judicial district in which a

substantial part of the events or omissions giving rise to the claim occurred, or a substantial part

of property that is the subject of the action is situated.” The purpose of this statute is to

5
  “It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the government, a court may treat those arguments that the plaintiff failed to address as
conceded.” Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (Walton, J.). The Court’s authority to treat
unopposed arguments as conceded derives from Local Civ. R. 7(b), which states as follows:

                  Within 11 days of the date of service or at such other time as the court may
                  direct, an opposing party shall serve and file a memorandum of points and
                  authorities in opposition to the motion. If such a memorandum is not filed
                  within the prescribed time, the court may treat the motion as conceded.

(Emphasis added.)

“Courts have interpreted this local rule to apply to specific arguments within a memorandum opposing a motion,”
United States v. Real Prop., 287 F. Supp. 2d 45, 61 (D.D.C. 2003) (Walton, J.), and the District of Columbia Circuit
“‘ha[s] yet to find that a district court’s enforcement of this rule constituted an abuse of discretion,’” Buggs, 293 F.
Supp. 2d at 141 (quoting FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (internal citations omitted)). The
Court therefore declines “to act as an advocate for [] the parties and construct their legal arguments on [their] behalf
in order to counter those in the motion to dismiss.” Real Prop., 287 F. Supp. 2d at 61 (internal citation and quotation
marks omitted).



                                                           8
“protect[] a defendant from the inconvenience of having to defend an action in a trial court that is

either remote from the defendant’s residence or from the place where the acts underlying the

controversy occurred.” Modaressi, 441 F. Supp. 2d at 53. “However, nothing in [§] 1392(b)(2)

mandates that a plaintiff bring suit in the district where the most substantial portion of the

relevant events occurred, nor does it require a plaintiff to establish that every event that supports

an element of a claim occurred in the district where venue is sought.” Great Socialist People’s

Libyan Arab Jamahiriya v. Miski, 496 F. Supp. 2d 137, 142 (D.D.C. 2007) (Walton, J.) (internal

citation and quotation marks omitted) (emphasis in original). “Thus, it is no longer appropriate

to ask which district is the ‘best’ venue, . . . or which venue has the most significant connection

to the claim.” FC Inv. Group LC v. Lichtenstein, 441 F. Supp. 2d 3, 11 (D.D.C. 2006). Instead,

“[t]he proper question is whether the district the plaintiff chose had a substantial connection to

the claim, whether or not other forums had greater contacts.” Id. (internal citation and quotation

marks omitted).

       “In tort cases, when determining whether a substantial part of the events or omissions

giving rise to the plaintiff’s claim occurred or did not occur” in a particular district for purposes

of § 1391(b)(2), “the facts that courts focus on include the place where the allegedly tortious

actions occurred and the place where the harms were felt.” 14D Charles A. Wright et al., Federal

Practice & Procedure § 3806.1 (6th ed. 2008). At the same time, “a court should not focus only

on those matters that are in dispute or that directly led to the filing of the action.” FC Inv.

Group, 441 F. Supp. 2d at 11 (internal citation and quotation marks omitted). “Rather, it should

review the entire sequence of events underlying the claim.” Id. (internal citation and quotation

marks omitted).




                                                  9
         In their opposition to the defendants’ motion to dismiss, the plaintiffs assert four ways in

which the District of Columbia has a “substantial connection” to their tort claims. First, the

plaintiffs assert that “Blackwater was providing services to the Department of State,” and “[t]he

relevant Department of State office is located in Washington, D.C.” Pl.’s Opp’n at 2. Second,

they contend that the defendants “falsely held themselves out to the United States as operating

legitimate companies . . . to procure government business.” Id. at 3. Third, they point out that

“the many Blackwater shootings are being investigated by the Congressional Committee on

Oversight and Government Reform.” Id. Finally, the plaintiffs note that “Blackwater’s actions

are being investigated by the United States Department of Justice and the . . . Federal Bureau of

Investigation,” and that “[t]his investigation is occurring in this District, . . . [t]he Department of

Justice has convened the [g]rand [j]ury in this jurisdiction, . . . [and] [t]he [g]rand [j]ury has

subpoenaed witnesses to testify in this District.” Id. at 4. 6

         The Court is not persuaded that the contractual relationship between Blackwater and the

Department of State is alone sufficient to render the District of Columbia a suitable venue for

any litigation tangentially connected to that relationship. As the defendants correctly point out:

                  Under [the p]laintiffs’ theory, any tort claim in any way related to
                  actions by a federal contractor could be brought in the District of
                  Columbia on the theory that “but for” the federal contract, the
                  alleged tort would not have occurred. For example, any inmate in
                  the country who sued a private prison under contract with the
                  federal Bureau of Prisons could bring this claim—no matter what
                  its basis—in the District of Columbia. . . . [Further,] [a]ny case
                  involving a tort committed by any sort of contractor or its
                  employees . . . could be heard in the district in which the initial
                  contract was entered into, even if the contractor, the work, [and]
                  the alleged tort . . . had no relation whatsoever to that
                  district. . . . A plaintiff injured in an automobile accident,

6
  The grand jury referenced by the plaintiffs ultimately indicted five former Blackwater employers for their alleged
role in the Nisour Square shooting. That case, which is currently pending before another member of this Court, is
styled as United States v. Slough, Criminal Action No. 08-360 (RMU) (D.D.C.).



                                                         10
                moreover, could argue that venue lay in the district where the
                defendant purchased the car because “but for” that purchase the
                accident would not have occurred.

Defs.’ Reply at 6.

        While the site of any contracts between the Department of State and the defendants

would be a proper venue for any claims arising out of those contracts, see Wright et al., supra,

§ 3806.1 (finding venue to be proper in breach of contract actions “where the contract was

negotiated or executed, where the contract was to be performed, and where the alleged breach

occurred”), these are not breach of contract cases, and the plaintiffs are not signatories to any

contracts with the defendants. Instead, the plaintiffs’ claims all arise from the alleged intentional

or negligent failure of Blackwater to properly hire, train, and supervise its employees. The

plaintiffs do not allege that any of these activities took place in the District of Columbia. And

the events directly leading to the plaintiffs’ lawsuits—the alleged wanton shooting of innocent

civilians in Baghdad on two occasions—obviously did not occur in the District of Columbia,

either. Thus, the contractual relationship between Blackwater and the Department of State does

not by itself give the District of Columbia a “substantial connection” to the plaintiffs’ claims.

        The plaintiffs’ reliance on congressional and criminal investigations as a basis for venue

is even less colorable. The rules for venue in a criminal offense committed outside the United

States are very different from the rules of venue in a civil case arising out of similar

circumstances. Compare 18 U.S.C. § 3238 (2006) (permitting “[t]he trial” of such offenses to be

held “in the district in which the offender . . . is arrested or is first brought or,” if such an

offender is not arrested or brought into any district, “in the district of the last known residence of

the offender . . . , or if no such residence is known . . . in the District of Columbia”), with 28

U.S.C. § 1391(b) (permitting civil cases not wholly founded on diversity of the parties to be




                                                   11
brought in “(1) a judicial district where any defendant resides, if all defendants reside in the same

State, (2) a judicial district in which a substantial part of the events or omissions giving rise to

the claim occurred,” or where “a substantial part of property that is the subject of the action is

situated, or,” if there is no other available district, (3) “a judicial district in which any defendant

may be found”). To hold, as the plaintiffs request, that a proper venue in a criminal case arising

out of extraterritorial acts automatically qualifies as a proper venue in a civil case arising out of

those same acts would essentially conflate the criminal civil venue statutes, a result manifestly at

odds with Congress’s intent. Nor is the Court aware of any authority supporting the notion that a

congressional investigation somehow renders the District of Columbia an appropriate venue for

lawsuits filed by private individuals. If that were the case, virtually any private dispute with

public implications that attract congressional attention could be litigated in this jurisdiction. The

Court declines to read § 1391(b)(2) in such a grossly overbroad manner.

        The Court is also skeptical of the plaintiffs’ argument that venue is appropriate in the

District of Columbia because the defendants may have misled the United States into thinking that

the Blackwater companies were reputable businesses. Such an assertion is plausible only if the

defendants have engaged in acts of obfuscation (e.g., suppressing or concealing incriminating

evidence) or conspired to do so in this jurisdiction. Under those circumstances, a credible case

could be made that the defendants engaged in acts in this jurisdiction (suppressing or concealing

incriminating evidence or conspiring to do so) that enabled Blackwater to engage in the tortious

conduct alleged in these cases. Cf. Freeman v. Fallin, 254 F. Supp. 2d at 57 (noting that

“[c]ourts have found venue proper in Bivens actions where substantial conspiring, planning, or

supervision of an event occurred, even if the event itself took place in another judicial district”).




                                                   12
       But that is not what the plaintiffs allege. They simply allege that “[t]he United States

paid Blackwater . . . substantial sums based on Blackwater’s misrepresentations.” Abtan Compl.

¶ 73; Albazzaz Compl. ¶ 51. The gist of this argument is that because the District of Columbia is

the seat of the United States government and the defendants allegedly misrepresented themselves

to the government, the District of Columbia is somehow an appropriate venue for claims raised

by third parties that were harmed in an entirely different location by those same defendants. But

alleging that an entity located in the District of Columbia has been misled is not the same thing

as asserting that acts of misrepresentation enabling tortious conduct abroad occurred in the

District of Columbia. Thus, if the Court were to limit its inquiry to the facts alleged in the

plaintiffs’ complaints, it would conclude that the allegations did not suffice to establish that the

District of Columbia is an appropriate venue for the plaintiffs’ claims.

       However, because lack of venue is an affirmative defense, “the plaintiff[s] [are] not

required to include allegations showing that the district in which the action has been brought is

one of proper venue.” Wright et al., supra, § 3826; see also SEC v. Ernst & Young, 775 F. Supp.

411, 412 (D.D.C. 1991) (“The plaintiff need not plead venue; rather, lack of venue is an

affirmative defense.”). And while the plaintiffs’ pleadings and their papers filed in response to

the defendants’ venue challenge are too vague to support an assertion of venue in this

jurisdiction, the plaintiffs suggest at one point in their opposition to the defendants’ motion that

the defendants “engaged in a series of communications with Department of State and other

government officials located in the District of Columbia designed to procure and keep their

government business.” Pls.’ Opp’n at 9. If this assertion is true, and if the “communications” in

question misrepresented Blackwater’s conduct in a manner that permitted Blackwater to train,

regulate, and discipline its employees in the manner alleged by the plaintiffs, then these




                                                 13
“communications” might be sufficient to create a “substantial connection” between the District

of Columbia and the plaintiffs’ tort claims that would justify litigation of those claims in this

venue under § 1391(b)(2). See FC Inv. Group, 441 F. Supp. 2d at 11 (holding that “[t]he

‘substantial part of the events or omissions’ test is satisfied by a communication transmitted to or

from the district in which the cause of action was filed, given a sufficient relationship between

the communication and the cause of action” (internal citation and quotation marks omitted)).

         In their attempt to mount a challenge to the defendants’ venue challenge, the plaintiffs

request venue discovery in their opposition to the defendants’ motion to dismiss; however, they

have not filed a formal motion requesting such relief as required by Federal Rule of Civil

Procedure 7(b)(1). The Court will therefore hold in abeyance the defendants’ motion to dismiss

and the plaintiffs’ motions for leave to file amended complaints so that the plaintiffs have an

opportunity to either supplement their opposition to the defendants’ motion with evidence

supporting their assertion that the defendants “engaged in a series of communications with

Department of State and other government officials located in the District of Columbia designed

to procure and keep their government business” by misrepresenting the manner in which

Blackwater hired, trained, and supervised its employees or seek discovery from the defendants

on this issue. If the plaintiffs have not filed a supplemental opposition with such evidence

attached or filed a motion for venue discovery on this issue within thirty days of the entry of this

order, or if the plaintiffs seek venue discovery and the Court concludes that, notwithstanding the

conclusions reached in this memorandum opinion, such a request must be denied, then the Court

will terminate the stay of the defendants’ motion and decide the motion accordingly at that time. 7



7
  The Court will defer any decision as to whether the “interests of justice” require the transfer of this case rather
than its dismissal until it is clear that venue in this Court is improper.



                                                           14
                                            IV. Conclusion

         “[I]t is entirely proper for this Court to hear [the p]laintiffs’ claims so long as they bear a

substantial connection to the District of Columbia.” FC Inv. Group, 441 F. Supp. 2d at 12. It is

unclear, however, from the plaintiffs’ pleadings and memoranda of law whether such a

connection exists in these cases. The Court would therefore be well within its discretion to

simply grant the defendants’ motion to dismiss or transfer and relieve itself of further

consideration of this matter. But if the plaintiffs had formally requested venue discovery on the

issue of the defendants’ purported written submissions transmitted to this jurisdiction at the

outset of the case, they may well have satisfied the Court’s concerns about the ambiguity of their

assertions. To penalize the plaintiffs for this failure on their part would unduly elevate the

formal requirements of the Federal Rules of Civil Procedure over the substantive merits of the

plaintiffs’ position, particularly given the plaintiffs’ request for venue discovery in their

opposition to the defendants’ motion.

         The Court will therefore provide the plaintiffs with an additional opportunity to

demonstrate the merits of their position in its fullest form. If the plaintiffs fail to adduce record

evidence or seek venue discovery, or if the Court, having reviewed the plaintiffs’ motion for

leave to take venue discovery, concludes that discovery is improper for some reason, then the

Court will not hesitate to resolve forthwith the defendants’ motion. But the Court must make

certain that the District of Columbia is not the proper venue for these cases before it dismisses or

transfers them. The Court will therefore stay the defendants’ motion to dismiss or transfer and

the plaintiffs’ motions for leave to file amended complaints for the limited purposes set forth

above.




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         SO ORDERED this 27th day of April, 2009. 8


                                                                          REGGIE B. WALTON
                                                                          United States District Judge




8
   This memorandum opinion accompanies an earlier order issued by the Court (1) staying the defendants’ motion to
dismiss or transfer, (2) staying the plaintiffs’ motions for leave to file amended complaints, (3) directing the
plaintiffs to file their supplemental opposition to the defendants’ motion to dismiss or transfer or motion for leave to
take venue discovery within thirty days of the date on which the order went into effect, and (4) specifying that the
order would be stayed until the Court issued this memorandum opinion. Thus, the earlier order entered by the Court
is no longer stayed as of the date of the issuance of this memorandum opinion.



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