                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

                                  )
DUANE BERRY,                      )
                                  )
     Plaintiff,                   )
                                  )
     v.                           ) Civ. Action No. 13-1217 (EGS)
                                  )
UNITED STATES DEPARTMENT          )
OF JUSTICE,                       )
                                  )
     Defendant.                   )
                                  )

                     MEMORANDUM OPINION AND ORDER

     Plaintiff Duane Berry, proceeding pro se, has brought an

action for declaratory and injunctive relief, as well as

compensatory damages, against the United States Department of

Justice (hereinafter “DOJ” or “Government”) for misconduct

arising out of a criminal prosecution in the Eastern District of

Michigan.   Plaintiff alleges violations of his rights pursuant

to the First, Fifth, and Sixth Amendments of the United States

Constitution.     Compl. at 1.   On December 26, 2013, after the

Government failed to respond to his complaint, Mr. Berry filed a

Motion for Default Judgment seeking $250,000,000 for lost wages

and partnership profits, and any other punitive damages that the

Court deems proper.     On April 14, 2014, the Court ordered Mr.

Berry and the Government to show cause why the case should not

be transferred to the United States District Court for the

Eastern District of Michigan, where the conduct described in

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Plaintiff’s Complaint appears to have arisen.       Plaintiff filed a

response to the Court’s order on April 30, 2014, arguing that

this case is properly before this Court.       Defendant filed its

Response on May 12, 2014, arguing that the case should be

transferred to the Eastern District of Michigan.       Upon review of

the parties’ responses, the applicable law, and the entire

record, the Court will TRANSFER this action to the United States

District Court for the Eastern District of Michigan.

I.   BACKGROUND

     On November 16, 2010, Duane Berry was charged in a two

count indictment with obstruction of justice and false

statements in the United States District Court for the Eastern

District of Michigan.   Compl. at 2; see United States v. Duane

Berry, No. 2:10-cr-20653-GAD-RSW-1 (E.D. Mich.)       These charges

were ultimately dismissed in an Order dated March 27, 2013,

after Mr. Berry had been detained pending trial for nearly two

and a half years.   Compl. at 5.       The federal prosecutors in that

case submitted a false stipulated motion in August 2011 claiming

that they had the consent of Mr. Berry’s attorney to continue

the trial while the parties engaged in plea negotiations.        Berry

v. Sullivan, 2013 U.S. Dist. LEXIS 64665, at *3-*4 (E.D. Mich.

May 7, 2013) (explaining, in an action filed by Mr. Berry

against a United States Marshal, the relevant background of the

underlying criminal case and dismissal).       The prosecutors

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involved eventually admitted that there had been a

miscommunication between the parties, and that they had not

received consent from defense counsel for the continuance.      Id.

at *2-*3.    Before the case was dismissed, Mr. Berry asked two

separate defense attorneys to file a motion with the court to

correct what he believed was a deliberate error, but both

refused.    Id. at *4.   In dismissing the case, the court

explained that the length of Mr. Berry’s pretrial detention, as

well as the Government’s demonstrated bad faith in bringing his

matter to a resolution, suggested a due process violation that

warranted dismissal of the charges against him.      Id.

       While he was in custody, Mr. Berry claims to have reported

the alleged misconduct of the Assistant United States Attorneys

involved in the criminal action to the United States Senate, the

Office of the General Counsel of the Administrative Office of

the United States Courts, the United States Supreme Court, and

other federal agencies and officials.     Pl.’s Show Cause Mem. at

4-6.    Mr. Berry alleges that the Government then retaliated

against him in a number of ways, including: (1) using deceptive

tactics and conspiring with his counsel to submit counterfeit

documents in an effort to obtain a superseding indictment; (2)

harassing and intimidating him by using “unlawful

interrogations;” and (3) transferring him “from facility to

facility without warning.”     Id. at 6-8.   As a result of this

                                   3
retaliation, Mr. Berry claims to have ceased communications with

the agencies he had contacted to report the alleged misconduct

by Assistant United States Attorneys in his criminal case.        Id.

Mr. Berry also alleges that after the criminal case against him

was dismissed, the Government continued to harass him by filing

frivolous motions to deter him from testifying in a federal

corruption investigation before the United States Senate.

Compl. at 11.   Mr. Berry further alleges that the Government

conspired with Bank of America to track his business

transactions and financially disable him.      Motion for Default

Judgment at 10.

      In addition to the instant matter, Mr. Berry has filed four

other civil cases arising out of these alleged facts.      See

Def.’s Show Cause Mem. at 2.      All of his previous cases were

brought in the United States District Court for the Eastern

District of Michigan.      Of those, three were brought against

federal officials alleging various constitutional and statutory

violations and were dismissed.      Id.

II.   STANDARD OF REVIEW

      Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of

the parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other

district where it might have been brought.”      In so doing, the

district court has discretion to transfer a case based on an

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“‘individualized case-by-case consideration of convenience and

fairness.’”   Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964));

see also Demery v. Montgomery County, 602 F. Supp. 2d 206, 210

(D.D.C. 2009) (“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.”)

(internal quotation marks omitted).   The moving party bears the

burden of establishing that transfer of the action is proper.

Devaughn v. Inphonic, Inc., 403 F. Supp. 2d 68, 71 (D.D.C.

2005); see also SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154

(D.C. Cir. 1978) (noting that the district court’s denial of a

motion to transfer “was effectively a ruling that [the

appellant] had failed to shoulder his burden”).

     In order to justify a transfer, defendants must make two

showings.   First, they must establish that the plaintiff could

have brought suit in the proposed transferee district.

Devaughn, 403 F. Supp. 2d at 71-72; Trout Unlimited v. United

States Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).

Second, defendants must demonstrate that considerations of

convenience and the interests of justice weigh in favor of a

transfer.   Devaughn, 403 F. Supp. 2d at 72; Trout Unlimited, 944

F. Supp. at 16.

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III. DISCUSSION

     Plaintiff argues that venue is proper in the District of

Columbia because “a substantial part of the events giving rise

to the claim occurred in response or lack thereof by Defendant’s

Washington, DC office.”   Pl.’s Show Cause Mem. at 3.      Further,

he argues that he would suffer “Severe Prejudice” by Defendant

and its conspirators if this case is transferred to the Eastern

District of Michigan.   Id. at 2.       The Government argues that the

case should be transferred because “Plaintiff Duane Berry could

have brought this case” in the Eastern District of Michigan and

“the operative facts supporting his claims occurred in that

judicial district.”   Def.’s Show Cause Mem. at 1.

     As an initial matter, the Court agrees that Plaintiff could

have brought this action in the Eastern District of Michigan.

Pursuant to 28 U.S.C. § 1391(e), “[a] civil action in which a

defendant is . . . an agency of the United States . . . may,

except as otherwise provided by law, be brought in any judicial

district in which (A) a defendant to the action resides, (B) a

substantial part of the events or omissions giving rise to the

claim occurred . . . or (C) the plaintiff resides if no real

property is involved in the action.”

     Significantly, Mr. Berry does not dispute that this action

could have been brought in the Eastern District of Michigan.       He

notes that he resides in Clinton Township, Michigan, which is

                                    6
within the Eastern District of Michigan.    Compl. at 1.   Because

the instant action involves issues of federal law, all federal

courts have subject matter jurisdiction over the claims Mr.

Berry has raised.   See 28 U.S.C. § 1331.   Accordingly, the Court

finds that this action could have been brought in the Eastern

District of Michigan.

     A.   Private Interest Factors

     The private interest factors the Court will consider in

deciding whether to transfer an action include, inter alia: (1)

the plaintiff’s choice of forum, unless the balance of

convenience is strongly in favor of the defendant; (2) the

defendant’s choice of forum; (3) whether the claim arose

elsewhere; (4) the convenience of the parties; (5) the

convenience of the witnesses, but only to the extent that

witnesses may be unavailable in one fora; and (6) the ease of

access to sources of proof.   See Spurlock v. Lappin, 870 F.

Supp. 2d 116, 122 (D.D.C. 2012) (citing Trout Unlimited v. Dep’t

of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996)).

     Mr. Berry argues that the Court should accept his choice of

forum because he would not be treated fairly in the Eastern

District of Michigan.   According to Mr. Berry, he has been

subject to “retaliatory and prejudicial behavior committed by

Defendant in the United States District Court for the Eastern

District of Michigan,” and that treatment has “severely

                                 7
prejudiced” his ability to assert his constitutional rights in

that forum.   Pl.’s Show Cause Mem. at 11.   He claims that the

court, as a whole “has openly admitted to prejudicing the

Plaintiff and has consistently and unapologetically demonstrated

their unwillingness to corporate [sic] with the lawful process .

. . in the execution of Due Process of Law.”    Id.

     The Government argues that the Eastern District of Michigan

is a more appropriate forum because “aside from the Department

of Justice’s headquarters being in this district, all of the

controversies underlying Plaintiff’s Complaint lack any ties to

the District of Columbia.”    Def.’s Show Cause Mem. at 5; see

generally Berry v. Sullivan, 2013 WL 1898365 at *1-2.

Additionally, the Government argues that witnesses and other

evidence are all are located in the Eastern District of

Michigan.   Def.’s Show Cause Mem. at 6.   The Government also

points to the fact that Mr. Berry has filed four civil actions

in the Eastern District of Michigan arising out of the same set

of facts as further evidence that this case should have been

brought in that district.    Id. at 5.

     The Court agrees.   Despite Mr. Berry’s conclusory

allegations about the prejudice he would suffer if forced to

litigate in the Eastern District of Michigan, he fails to

provide any actual details about the alleged prejudicial

behavior of the court.   Indeed, the facts of the underlying

                                  8
criminal case, and the four civil actions Mr. Berry has since

filed, belie his assertions.   A judge in the very court he

claims is so prejudicial as to be unable to give him a fair

opportunity to be heard dismissed the criminal case and

condemned the conduct of the Assistant United States Attorneys

prosecuting that case.   Pl.’s Show Cause Mem. at 9.      Thus, the

Court finds that Plaintiff’s choice of forum, under these

circumstances, is entitled to very little deference.       See Ferens

v. John Deere Co., 494 U.S. 516, 525 (1990) (explaining that

“the decision to transfer venue under § 1404(a) should turn on

consideration of convenience and the interest of justice rather

than on the possible prejudice”).

     Nor do Mr. Berry’s arguments regarding the response or lack

of response by Defendant’s Washington, D.C. office provide

sufficient grounds for the Court to retain jurisdiction.       Pl.’s

Show Cause Mem. at 3.    Plaintiff has failed entirely to address

how the decisions made in the District of Columbia have given

rise to the alleged misconduct.       Such an insubstantial factual

nexus between the case and this forum is simply not enough to

sustain venue in this jurisdiction, especially “where the chosen

forum is not the plaintiff’s home forum.”       New Hope Power Co. v.

U.S. Army Corps. Of Eng’rs, 724 F. Supp. 2d 90, 95 (D.D.C.

2010); see generally Berry v. Sullivan, 2013 WL 1898365 at *1-2.

Moreover, deference to Mr. Berry’s choice of forum is further

                                  9
weakened where, as here, the transferee forum has “substantial

ties” to both the plaintiff and “the subject matter of the

lawsuit.”    Trout Unlimited, 944 F. Supp. at 17.

     Given the inextricable links between this action and the

criminal case, the Eastern District of Michigan is not only more

appropriate, but would also be more convenient for the parties.

All of the alleged misconduct by Defendant, both during and

after Mr. Berry’s criminal case, occurred in the Eastern

District of Michigan.    Pl.’s Show Cause Mem. at 4-7.   The only

tie to this District, as the Government notes, is that the

Department of Justice is headquartered here, which is not

sufficient, on its own, for this Court to maintain jurisdiction.

See Sheffer v. Novartis Pharmaceuticals, 873 F. Supp. 2d 371,

376 (D.D.C. 2012) (transferring a case where the only tie to the

District of Columbia was that the court had in personum

jurisdiction over the defendant).     Thus, the Court finds that

the private interest factors support transfer of this action.

     B.     Public Interest Factors

     In addition to the private interest factors discussed

above, the Court must also consider several public interest

factors before transferring a case to another forum.     These

factors include: “1) the transferee’s familiarity with the

governing laws, 2) the relative congestion of each court, and 3)

the local interest in deciding local controversies at home.”

                                 10
Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 34 (D.D.C.

2008) (citing Liban v. Churchkey Group II, L.L.C., 305 F. Supp.

2d 136, 143 (D.D.C. 2004)).

     Here, both the District of Columbia and the Eastern

District of Michigan have the requisite familiarity with the law

and are equally able to resolve the present dispute.   See

Montgomery, 532 F. Supp. 2d at 34 (citing In re Korean Air Lines

Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175 (D.C. Cir.

1987)).   In addition, there are also local interests in deciding

the case in the transferee forum given that Plaintiff has

accused “the federal prosecutors and the U.S. Marshals in the

Eastern District of Michigan” of misconduct.   Def.’s Show Cause

Mem. at 8.   Further, Mr. Berry has also filed four other cases

relating to that misconduct in the transferee forum, suggesting

that it may be more familiar with the facts and circumstances

surrounding his claims.   See e.g., United States ex rel Westrick

v. Second Chance Body Armor, Inc., 771 F. Supp. 2d 42, 46-47

(D.D.C. 2011) (declining to transfer a case to another forum

because the Court was “familiar with the multiple issues and

lengthy procedural history of the case, and [had] decided

[defendants’] dispositive motions,” and because it would have

taken another court “a substantial amount of time to familiarize

itself with the case”).   Thus, because “[l]itigation of . . .

related claims in the same forum is strongly favored,” the

                                11
public interest factors weigh in favor of transfer as well.   Id.

(quoting Islamic Republic of Iran v. Boeing Co., 477 F. Supp.

142, 144 (D.D.C. 1979)).

IV.   CONCLUSION AND ORDER

      The Court concludes that the interests of justice would be

best served by transferring this case to the Eastern District of

Michigan.    Accordingly, it is hereby

      ORDERED that, pursuant to 28 U.S.C. § 1404(a), the Clerk’s

Office is directed to TRANSFER this case to the United States

District Court for the Eastern District of Michigan.

      SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            June 20, 2014




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