                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
JOHNATHAN MANUEL DEMERY,       )
et al.,                        )
          Plaintiffs,          )
                               )
          v.                   )    Civil Action No. 08-1304 (RWR)
                               )
MONTGOMERY COUNTY, MARYLAND, )
et al.,                        )
                               )
          Defendants.          )
______________________________)


                   MEMORANDUM OPINION AND ORDER

     Plaintiffs Jonathan Demery, Tijuana1 Demery, and Wayne Mabry

bring this action against Detective Katherine Fumagalli and

Montgomery County, Maryland, alleging federal and state

constitutional violations and several common law torts arising

out of Johnathan Demery’s arrest and confinement.   The defendants

have moved to dismiss certain counts for failure to state a

claim, or to transfer this case to the United States District

Court for the District of Maryland.   Because the defendants have

not shown that transfer is proper, their motion to transfer will

be denied.   Because the plaintiffs have adequately pled causes of

action for a federal constitutional violation, and governmental

immunity does not bar plaintiffs’ claims of false arrest and

negligence, but plaintiffs have conceded dismissal of the claim


     1
       Plaintiff’s name is spelled “Tijuana” in the caption of
the complaint, but spelled “Pijuana” in the body of the
complaint.
                                 -2-

under Article 24 of the Maryland Constitution and Montgomery

County is immune from the plaintiffs’ claim of malicious

prosecution under Maryland law, the defendants’ motion for

partial dismissal will be granted in part and denied in part.

                            BACKGROUND

     On June 21, 2007, three men assaulted Mark Tobias in

Bethesda, Maryland, and stole his car.    (Compl. ¶ 6.)   Tobias

described one of the three men who assaulted him as being 5'10"

to 5'11" in height, black, weighing 200 pounds, and wearing dark

knee-length shorts, a dark hooded sweatshirt and Adidas brand

tennis shoes.   (Compl. ¶ 7.)   Fumagalli, a Montgomery County

police detective, was assigned to be the lead detective on the

case.   On June 22, 2007, Montgomery County detectives recovered

Tobias’ car parked in an alley located at 10th and Monroe Streets

N.W., in Washington D.C.   (Compl. ¶¶ 8-9.)   On June 26, 2007,

Fumagalli and Detective David Davis saw Johnathan Demery

(“Johnathan”) standing near the intersection of 10th Street and

Spring Road N.W.   The detectives photographed Johnathan, and

asked him for his name, address, date of birth, social security

number, and the name of the high school he attended.      Johnathan

provided the officers with the information they requested.

(Compl. ¶¶ 10-11.)

     On June 27, 2007, Detective Fumagalli applied to the

Montgomery County District Court for an arrest warrant charging
                                 -3-

Johnathan with the felony of carjacking.    In the affidavit

supporting the application, Fumagalli alleged that:

            On Tuesday June 26, 2007, detectives from the
       Montgomery County Police, Robbery Section responded to
       the area of 10th and Monroe where the vehicle was
       recovered. Located nearby at the Raymond Rec Center
       was a group of males matching the above suspect [sic]
       description. Specifically, one male in the group was
       observed to closely match the surveillance video image
       of suspect #1. Metropolitan Police was [sic] contacted
       and the group was Field Interviewed. [Johnathan]
       Demery was identified by his District of Columbia
       driver’s license. Demery can be identified as the
       suspect in the surveillance images, was wearing tennis
       shoes identical to the ones in the surveillance images,
       and was located only a few blocks from the location
       where the stolen vehicle was recovered, and provided an
       address which was only one block from the rec center
       where he was identified. Demery’s physical description
       matches that provided by the victim and when viewed, he
       matches the images on the surveillance tape.


(Compl. ¶ 11.)    Johnathan was arrested and questioned in a

recorded interview on June 27, 2007, and said he was at home with

his parents and siblings at the time of the carjacking.     He was

held at a jail in the District of Columbia until July 3, 2007,

when Fumagalli transported him to Montgomery County, Maryland.

She questioned him and he again maintained his innocence.      On

July 4, 2007, Johnathan was released on a bond for which Tijuana

Demery and Wayne Demery paid a bondsman $1,500.    (Compl. ¶¶ 15-

18.)    On July 27, 2007, the county prosecutor declined to

prosecute Johnathan for the carjacking.    (Compl. ¶ 18.)

       The plaintiffs allege that several of Fumagalli’s assertions

in her affidavit were knowingly false and misleading or
                                 -4-

demonstrated a reckless disregard for the truth, that Fumagalli

lacked probable cause to believe that Johnathan participated in

the carjacking and assault of Tobias, and that she failed to

determine before and after his arrest whether Johnathan had a

legitimate alibi.    (Compl. ¶¶ 13-14.)   The complaint alleges

seven counts against the defendants: unlawful arrest and

detention in violation of the Fourth Amendment under 42 U.S.C.

§ 1983 (Count 1); malicious prosecution under 42 U.S.C. § 1983

(Count 2); unconstitutional search and seizure of the plaintiffs’

home and cell phones in violation of the Fourth Amendment under

42 U.S.C. § 1983 (Count 3); common law malicious prosecution

(Count 4); common law false arrest and imprisonment (Count 5);

unreasonable arrest and search in violation of Articles 24 and 26

of Maryland’s Constitution (Count 6); and negligence under the

common law of the District of Columbia (Count 7).     (Compl. ¶¶ 23-

33.)

       The defendants move to transfer this case to the United

States District Court for the District of Maryland.     (See Defs.’

Mot. to Change Venue.)    Alternatively, the defendants move to

dismiss Count 2 of the complaint, Counts 4, 5, and 7 against

Montgomery County, and all claims in Count 6 that arise under
                                -5-

Article 24 of the Maryland Constitution.2   (See Defs.’ Mot. for

Partial Dismissal at 1-2.)

                             DISCUSSION

I.   TRANSFER

     A case may be transferred to another venue under 28 U.S.C.

§ 1404(a) “[f]or the convenience of parties and witnesses, in the

interest of justice[.]”   28 U.S.C. § 1404(a).   See also Piper

Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981).    The moving

party carries the burden of demonstrating that a transfer is

warranted.   Montgomery v. SGT Int’l, Inc., 532 F. Supp. 2d 29, 32

(D.D.C. 2008); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1,

3 (D.D.C. 2006).   Because “it is perhaps impossible to develop

any fixed general rules on when cases should be transferred[,]

. . . the proper technique to be employed is a factually

analytical, case-by-case determination of convenience and

fairness.”   SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.

Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925

(1974)).

     “Any transfer under § 1404(a) is restricted to a venue where

the action ‘might have been brought.’”    See 28 U.S.C. § 1404(a);

Robinson v. Eli Lilly Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008).



     2
       Plaintiffs concede that they have not pled a cause of
action under Article 24 of the Maryland Constitution. Therefore,
the defendants’ motion to dismiss this portion of the claim will
be granted.
                                 -6-

When, as here, jurisdiction is not based solely on diversity of

citizenship,

     [a] civil action . . . may, except as otherwise
     provided by law, be brought only 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 a substantial
     part of property that is the subject of the action is
     situated, or (3) a judicial district in which any
     defendant may be found, if there is no district in
     which the action may otherwise be brought.

28 U.S.C. § 1391(b).   Here, Montgomery County is a chartered

county of the State of Maryland and Fumagalli resides in

Maryland.   (See Defs.’ Mem. in Supp. of Defs.’ Mot. to Change

Venue at 4.)   Therefore, this action could have been brought in

the potential transferee district.

     After determining that venue in the proposed transferee

district would be proper, a court then “must weigh in the balance

the convenience of the witnesses and those public-interest

factors of systemic integrity and fairness that, in addition to

[the] private concerns [of the parties], come under the heading

of ‘the interest of justice.’”   Stewart Org. Inc. v. Ricoh Corp.,

487 U.S. 22, 30 (1988).   The private interest factors that are

typically considered include 1) the plaintiff’s choice of forum,

2) the defendant’s choice of forum, 3) where the claim arose,

4) the convenience of the parties, 5) the convenience of the

witnesses, particularly if important witnesses may actually be

unavailable to give live trial testimony in one of the districts,
                                -7-

and 6) the ease of access to sources of proof.    Montgomery, 532

F. Supp. 2d at 32-33.   Public interest factors include 1) the

local interest in making local decisions about local

controversies, 2) the potential transferee court’s familiarity

with the applicable law, and 3) the congestion of the transferee

court compared to that of the transferor court.   Akiachak Native

Community v. Dep’t of the Interior, 502 F. Supp. 2d 64, 67

(D.D.C. 2007).   When a court balances private and public

interests, a “plaintiff’s choice of forum is ordinarily accorded

deference.”   Aftab v. Gonzalez, Civil Action No. 07-2080 (RWR),

2009 WL 368660, at *3 (D.D.C. February 17, 2009); see also

DeLoach v. Phillip Morris Cos., 132 F. Supp. 2d 22, 24 (D.D.C.

2000).   When two potentially proper venues are involved, the

plaintiffs’ choice of forum is often accorded substantial

deference, particularly where the plaintiffs have chosen their

home forum and many of the relevant events occurred there.   Great

Socialist People’s Libyan Arab Jamahiriya v. Miski, 496 F. Supp.

2d 137, 144-145 (D.D.C. 2007) (citing Reiffin v. Microsoft Corp.,

104 F. Supp. 2d 48, 52 (D.D.C. 2000) (internal citations

omitted)); cf. Hunter v. Johanns, 517 F. Supp. 2d 340, 344

(D.D.C. 2007) (noting that “the strong presumption against

disturbing plaintiff[’s] initial forum choice . . . is weakened

. . . when the forum is not plaintiff’s home forum and most of

the relevant events occurred elsewhere”) (internal quotations and
                                 -8-

citations omitted).    Ultimately, if the balance of private and

public interests favors a transfer of venue, then a court may

order a transfer.

     A.     Private interests

     The plaintiffs reside in this forum and have chosen to file

their action here.    The defendants have presented no reason to

disturb the substantial deference due to the plaintiffs’ choice

of their home forum.    While the defendants argue that the conduct

that gave rise to the action was Fumagalli swearing out a warrant

in Maryland to lead to a prosecution in Maryland,3 the gravamen

of the complaint’s allegations is the actual Fourth Amendment

deprivations which occurred in this district.    The search of the

plaintiffs’ house and Johnathan’s arrest and detention took place

in the District of Columbia based upon investigation conducted by

Fumagalli in the District of Columbia.    Had Fumagalli stopped at

swearing out the warrant affidavit and not caused the arrest and

search warrants to be executed, this lawsuit would have been

unlikely.    And although both of the defendants reside in Maryland



     3
       The defendants’ reliance on Clark v. Harp, 737 F. Supp.
676 (D.D.C. 1990) is misplaced. In Clark, the court determined
that venue was improper in the District of Columbia because the
plaintiff’s claim did not arise in the District. Here, however,
the plaintiffs have alleged that a substantial part of the events
giving rise to the claim occurred in the District of Columbia,
such as Johnathan’s arrest, his initial confinement in jail, and
the searches and seizure of the plaintiffs’ dwelling. Unlike
Clark, this case is not one where one venue is improper and the
other is proper; venue is proper in the District of Columbia.
                                  -9-

and the evidence of the carjacking is in Maryland, the close

proximity of the district courts in Maryland and the District of

Columbia hardly poses any obstacle to the parties’ appearance

here, the defendants’ ability to present witnesses, or their

access to sources of proof.     See Modaressi v. Vedadi, 441 F.

Supp. 2d 51, 57 (D.D.C. 2006) (“the geographic distance between

this Court and . . . the District of Maryland is far too small to

present anything more than minor practical difficulties for the

parties or their witnesses.”)     The plaintiffs point out that all

of the witnesses to this action are within the 100-mile

geographical area to which subpoena power extends.     The balance

of private interests favors this district.

     B.      Public interests

     The facts here may strain the notion that there are two

disparate localities with disparate interests in making decisions

about this controversy, since the events occurred in contiguous

local jurisdictions which enjoy seamless and constant cross-

border interactions.     It may be true that the conduct of a

Maryland detective investigating a Maryland carjacking may carry

greater interest in Maryland, but her triggering an arrest and

detention in this district of a resident of this district and a

search of plaintiffs’ home here would carry no less interest

here.     Some claims will be governed by Maryland law, while others

will be governed by D.C. law.     The rest will be governed by
                                -10-

federal law, with which both districts’ federal courts are

presumed to be equally familiar.     Al-Ahmed v. Chertoff, 564 F.

Supp. 2d 16, 20 (D.D.C. 2008) (stating that both federal courts

are “equally familiar” with federal law).     The defendants did not

present evidence regarding the relative congestion of the

different courts.    The balance of public interests does not tilt

in favor of transfer.

      The defendants have not carried their burden of

demonstrating that the public and private interests favor

transfer.    At most, the defendants have shown why they believe

that the District of Maryland is a slightly more convenient forum

for them, a showing that is insufficient to nullify the deference

due to the plaintiffs’ choice of forum.     See Miski, 496 F. Supp.

2d at 145.    The defendants’ motion to transfer venue will be

denied.

II.   MOTION FOR PARTIAL DISMISSAL

      The defendants move under Fed. R. Civ. P. 12(b)(6) to

dismiss Count 2 of plaintiffs’ complaint, as well as claims

against Montgomery County in Counts 4, 5, and 7.     Rule 12(b)(6)

authorizes dismissal of a complaint when a plaintiff fails to

state a claim upon which relief can be granted.     See Fed. R. Civ.

P. 12(b)(6).    In order to survive a motion to dismiss under Rule

12(b)(6), the allegations stated in the contested portion of the

plaintiff’s complaint “must be enough to raise a right to relief
                                -11-

above the speculative level[.]”    Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007).    The complaint must be construed in the

light most favorable to the plaintiff and “the court must assume

the truth of all well-pleaded allegations.”    Warren v. District

of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).    If a plaintiff

fails to allege sufficient facts to support a claim, that claim

must be dismissed.   See Twombly, 550 U.S. at 555-556.

     A.   Count 2: malicious prosecution under 42 U.S.C. § 1983

     The defendants argue that Count 2 should be dismissed

because there is no “independent” cause of action for malicious

prosecution under 42 U.S.C. § 1983.    To state a proper claim

under § 1983, a plaintiff must allege (1) that the defendant was

acting under color of state law when the defendant committed the

actions the plaintiff complains of, and (2) that the defendant

deprived the plaintiff of a right, privilege, or immunity

protected by the Constitution or laws of the United States.      See

LaRouche v. Fowler, 152 F.3d 974, 988 (D.C. Cir. 1998); Ennis v.

Lott, 589 F. Supp. 2d 33, 37 (D.D.C. 2008); Johnson v. Lewis,

Civil Action No. 06-22 (RWR), 2006 WL 2687017, at *3 (D.D.C.

September 19, 2006).    According to the defendants, there is no

federal right to be free from malicious prosecution, so

plaintiffs fail to allege the second element of the two elements

necessary to state a claim under § 1983.    However, contrary to

the defendants’ assertion, the D.C. Circuit recently “join[ed]
                                -12-

the large majority of circuits in holding that malicious

prosecution is actionable under 42 U.S.C. § 1983 to the extent

that the defendant’s actions cause the plaintiff to be

unreasonably ‘seized’ without probable cause, in violation of the

Fourth Amendment.”   Pitt v. Dist. of Columbia, 491 F.3d 494, 510

(D.C. Cir. 2007).    Here, plaintiffs allege that the defendants’

malicious prosecution of Johnathan led to the unreasonable

seizure of his person (see Compl. ¶ 20), thereby alleging a

cognizable claim under Pitt.   The defendants’ motion to dismiss

Count 2 will be denied.4

     B.   Counts 4, 5, and 7: state tort claims

     The defendants move to dismiss plaintiffs’ state law claims

of false arrest and imprisonment, malicious prosecution, and

negligence brought against Montgomery County in Counts 4, 5,

and 7 based upon the argument that Montgomery County would be

entitled to governmental immunity from these claims under




     4
       In their reply brief, the defendants also argue that Count
2 should be dismissed because it is “duplicative” of Count 1 of
the complaint. Because this argument was raised for the first
time in their reply brief, it will not be considered. See
Presbyterian Med. Ctr. of the Univ. of Pa. Health Sys. v.
Shalala, 170 F.3d 1146, 1152 (D.C. Cir. 1999) (stating that a
court need not consider an argument first raised in a reply
brief); D.L. v. District of Columbia, 450 F. Supp. 2d 11, 20 n.6
(D.D.C. 2006) (“Defendants should have included this argument in
their motion to dismiss, rather than waiting to raise it in their
Reply.”).
                                -13-

Maryland law.    Plaintiffs oppose and argue that District of

Columbia law would apply and would not afford immunity.5

       Both parties agree that the District of Columbia’s choice of

law rules will apply.    See Robinson, 535 F. Supp. at 53; Mastro

v. Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006)

(applying District of Columbia choice of law rules to plaintiff’s

claims because “[w]hen deciding state-law claims under . . .

supplemental jurisdiction, federal courts apply the choice-of-law

rules of the jurisdiction in which they sit”) (internal citations

omitted).    The District of Columbia’s highest court has explained

that

       [i]n determining which jurisdiction’s law to apply in a
       tort case, we use the “governmental interests”
       analysis, under which we evaluate the governmental
       policies underlying the applicable laws and determine
       which jurisdiction’s policy would be more advanced by
       the application of its law to the facts of the case
       under review. [In order to determine which
       government’s interest is strongest] we also consider
       the four factors enumerated in the Restatement (Second)
       of Conflict of Laws § 145 [1971]: (a) the place where
       the injury occurred; (b) the place where the conduct
       causing the injury occurred; (c) the domicile,
       residence, nationality, place of incorporation and


       5
       The defendants appear to concede that under District of
Columbia law, Montgomery County would not be entitled to
dismissal based upon governmental immunity. (See Defs.’ Mem. in
Supp. of Mot. for Partial Dismissal at 8 n.3.) In addition,
plaintiffs concede that Montgomery County would be entitled to
dismissal of the state common law tort claims under Maryland law.
(See Pls.’ Mem. in Supp. of Pls.’ Opp’n to Mot. for Partial
Dismissal at 7.) A court may base its analysis upon such
concessions by parties. Jacobsen v. Oliver, 555 F. Supp. 2d 72,
77 (D.D.C. 2007), citing CSX Transp., Inc. v. Commercial Union
Ins. Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996).
                                -14-

     place of business of the parties; and (d) the place
     where the relationship is centered. . . . When both
     jurisdictions have an interest in applying their own
     laws to the facts of the case, the forum law will be
     applied unless the foreign jurisdiction has a greater
     interest in the controversy.

Drs. Groover, Christie & Merritt v. Burke, 917 A.2d 1110, 1117

(D.C. 2007) (quotation marks and brackets in the original;

citations omitted).   Under the District of Columbia’s choice of

law rules, courts are allowed to apply the law of one

jurisdiction to one claim in a case while determining that the

law of another jurisdiction should control another claim in the

same case, a practice known as dépeçage.   See Hercules & Co. v.

Shama Restaurant, 566 A.2d 31, 40 (D.C. 1989); Stutsman v. Kaiser

Found. Health Plan, 546 A.2d 367, 373 (D.C. 1988).

          1.   False arrest and negligence claims

     The defendants fail to meet their burden to show that

Maryland’s interests exceed the interests of the District of

Columbia regarding the false arrest and imprisonment and

negligence claims.    The locations of the injuries, the location

of the conduct causing the injuries, the parties’ domiciles, and

the center of the relationship between the parties lie no better

for defendants than equally in both jurisdictions.   Regarding the

false arrest and imprisonment claim, Johnathan was arrested in

the District of Columbia and spent six days in jail in the

District of Columbia, while he spent only one day detained in

Maryland after a bail hearing there.   These facts reflect no
                                -15-

greater injury in Maryland.    While Fumagalli prepared the

allegedly faulty affidavit and secured the arrest warrant in

Maryland, the chain of events causing the injury of arrest and

imprisonment began with the allegedly negligent investigation in

this district that produced the affidavit’s contents.    With the

locus of the parties’ domiciles and relationships split between

the District of Columbia and Maryland, these factors in the

aggregate present no greater governmental interest in Maryland

applying its laws to the arrest and detention in the District of

Columbia of a domiciliary here.    Similarly, plaintiffs’

negligence claim pertains to Fumagalli’s purported failure to

exercise appropriate care and diligence with exculpatory leads

before charging the defendant with felonious carjacking and

causing his arrest and detention and a search of plaintiffs’

home.   While some aspects of the investigation occurred in

Maryland, some also occurred in the District of Columbia.     Much

of the injury occurred in this district, while some occurred in

Maryland.    The defendants simply have not demonstrated that

Maryland has a greater interest in applying its laws to the

plaintiffs’ negligence claim.    The defendants’ motion to dismiss

Counts 5 and 7 against Montgomery County will be denied.

            2.   Malicious prosecution

     The defendants have met their burden to show that Maryland

law would apply to the plaintiffs’ claim of malicious prosecution
                               -16-

in Count 4.   The genesis of the claim of malicious prosecution

was Fumagalli’s swearing to a purported false affidavit about

Johnathan, conduct that occurred in Maryland by an employee of a

Maryland jurisdiction’s police department which led to a

prosecution that was initiated and centered in Maryland.

Maryland law would apply to this claim, and Montgomery County

will be afforded immunity from suit on the plaintiffs’ claim of

malicious prosecution under Maryland law.     Defendants’ motion to

dismiss Count 4 against Montgomery County will be granted.

                       CONCLUSION AND ORDER

     The defendants have not shown that transfer is proper, the

plaintiffs have adequately pleaded causes of action for malicious

prosecution under 42 U.S.C. § 1983 and Montgomery County is not

immune from the plaintiffs’ state law claims of false arrest and

negligence.   The plaintiffs have conceded that they have not pled

a cognizable claim under Article 24 of the Maryland Constitution,

and Montgomery County is immune from the plaintiffs’ state law

claim of malicious prosecution.   Accordingly, it is hereby

     ORDERED that defendant’s motion [4] to change venue be, and

hereby is, DENIED.   It is further

     ORDERED that defendant’s motion [5] for partial dismissal

be, and hereby is, GRANTED in part and DENIED in part.

Plaintiffs’ claim under Article 24 of the Maryland Constitution
                              -17-

in Count 6 and plaintiffs’ claim of malicious prosecution against

Montgomery County in Count 4 are DISMISSED.   The motion is

otherwise denied.

     SIGNED this 18th day of March, 2009.



                                             /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
