                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                      :
SANDY BAEZ,                                           :
                                                      :
                       Plaintiff,                     :
                                                      :
               v.                                     :          Civil Action No. 09-0925 (EGS)
                                                      :
CONNELLY, et al.,                                     :
                                                      :
                       Defendants.                    :
                                                      :


                                    MEMORANDUM OPINION

       This matter is before the Court on defendants’ motion to dismiss. For the reasons

discussed below, the motion will be denied without prejudice and this action will be transferred

to the United States District Court for the District of Rhode Island.

                                       I. BACKGROUND

       Plaintiff is currently serving a federal sentence at a correctional facility in Philipsburg,

Pennsylvania. Compl. at 1 (introductory paragraph); see Mem. in Supp. of Fed. Defs.’ Mot. to

Dismiss (“Defs.’ Mem.”), Ex. 1 (Judgment, United States v. Baez, No. 1:06CR00071-01T

(D.R.I. May 25, 2007) at 2 (imposing a prison term of 90 months each as to Count I, assault on a

federal law enforcement officer, and Count II, distribution of 100 grams or more of heroin, to be

served concurrently). The events giving rise to this action occurred in Providence, Rhode Island.

Compl. at 2 (Venue).

       Plaintiff arranged to sell a quantity of heroin to an individual whom he later discovered

was an informant for the Drug Enforcement Administration (“DEA”). See Compl. ¶¶ 9-14.


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Upon consummation of the deal and in response to a prearranged signal, “DEA agents and other

officials moved in” to arrest plaintiff. Id. ¶ 16. Plaintiff fled, id. ¶ 17, and “[w]hen the police

finally caught up with [him], he immediately went down on his kness [sic] and put his hands

behind his back,” id. ¶ 18. At that time, defendants allegedly assaulted plaintiff, id. ¶ 20, and

plaintiff sustained an injury “above his eye after [an] officer pistol whipped him across the left

eye,” id. ¶ 21. During plaintiff’s transport, a DEA agent allegedly “pulled out a taser and started

firing shots at plaintiff” when plaintiff refused to sign a document “that would have permitted a

warrantless search of [his] home,” id. ¶ 25, resulting in injuries to his chest, stomach, groin, ribs

and leg, id. ¶ 26. The taser, fired at least nine times, id. ¶ 31, while plaintiff “was shaking,

kicking [and] scre[a]ming,” id. ¶ 33, allegedly caused extreme pain and damage to plaintiff’s

lungs, id. ¶¶ 34-38, 43-49.

       In this action, plaintiff brings constitutional claims against the defendants both in their

individual capacities under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971), and in their official capacities, and he brings tort claims as well. Plaintiff

demands a declaratory judgment, injunctive relief, and unspecified monetary damages. See id. at

11 (Prayer of Relief).

                                         II. DISCUSSION

       For purposes of this Memorandum Opinion, the Court presumes without deciding that it

has subject matter jurisdiction, that service of process has been effected on all the defendants,

and that the complaint states claims upon which relief can be granted.

                 A. The Court Lacks Personal Jurisdiction Over The Defendants

       “A District of Columbia court may exercise personal jurisdiction over a person domiciled


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in, organized under the laws of, or maintaining his or its principal place of business in, the

District of Columbia as to any claim for relief.” D.C. Code § 13-422. It is the plaintiff’s burden

to make a prima facie showing that the Court has personal jurisdiction over the defendants. See

First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378-79 (D.C. Cir. 1988); Walton v.

Bureau of Prisons, 533 F. Supp. 2d 107, 112 (D.D.C. 2008). Moreover, the “[p]laintiff must

allege specific facts on which personal jurisdiction can be based; [he] cannot rely on conclusory

allegations.” Moore v. Motz, 437 F. Supp. 2d 88, 91 (D.D.C. 2006) (citations omitted). Plaintiff

does not allege that the defendants either reside or maintain a principal place of business in the

District of Columbia, and under these circumstances the Court engages in a two-part inquiry to

determine whether it may exercise personal jurisdiction over non-resident defendants.

       The Court first must determine whether jurisdiction may be exercised under the District

of Columbia’s long-arm statute. See GTE New Media Servs., Inc. v. Bell South Corp., 199 F.3d

1343, 1347 (D.C. Cir. 2000); see also Ibrahim v. District of Columbia, 357 F. Supp. 2d 187,

192-93 (D.D.C. 2004) (determining whether personal jurisdiction exists over defendants outside

the forum in which the underlying suit was commenced in § 1983 suit under District of

Columbia long-arm statute). The long-arm statute allows the Court to exercise personal

jurisdiction over a non-resident defendant with regard to a claim arising from the defendant’s

conduct in:

               (1)     transacting business in the District of Columbia;
               (2)     contracting to supply services in the District of Columbia;
               (3)     causing tortious injury in the District of Columbia by an
        [or]           act or omission in the District of Columbia;
               (4)     causing tortious injury in the District of Columbia by an act
                       or omission outside the District of Columbia if he regularly
                       does or solicits business, engages in any other persistent
                       course of conduct, or derives substantial revenue from goods

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                       used or consumed, or services rendered, in the District of
                       Columbia[.]

D.C. Code § 13-423(a).1 Nothing in the complaint suggests that the defendants fall within the

scope of any one or more of these categories. They are not alleged to have transacted business,

contracted to supply services, or caused a tortious injury in the District of Columbia. The long-

arm statute, then, offers no basis for the Court’s exercise of personal jurisdiction over the

defendants.

       Second, the Court must determine whether the exercise of personal jurisdiction satisfies

due process requirements. See, e.g., Morris v. U.S. Prob. Serv., No. 09-0799, 2010 WL

2802661, at *2 (D.D.C. July 16, 2010) (citations omitted). This portion of the analysis turns on

whether a defendant’s “minimum contacts” with the District of Columbia establish that “the

maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted).

These minimum contacts must arise from “some act by which the defendant purposefully avails

[himself] of the privilege of conducting activities with the forum state, thus invoking the benefits

and protections of its laws.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. of Cal., Solano Cty., 480

U.S. 102, 109 (1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).

       Plaintiff argues that the defendants have a “personal connection with the District of

Columbia more than [their] federal employment,” because their “overall coordinator, known as

overall head-office is located in the District of Columbia.” Pl.’s Opp’n at 7. Based on this

alleged nexus, plaintiff asserts that this Court has personal jurisdiction over the defendants. Id.




       1.      The alternative bases set forth under the long-arm statute are inapplicable.

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This argument is neither persuasive nor consistent with case law. See, e.g., Cornell v. Kellner,

539 F. Supp. 2d 311, 315 (D.D.C. 2008) (concluding that defendant’s employment with the

Internal Revenue Service, which is headquartered in the District of Columbia, is not a sufficient

contact to support the exercise of personal jurisdiction under the District’s long-arm statute);

Majhor v. Kempthorne, 518 F. Supp. 2d 221, 237 (D.D.C. 2007) (concluding that plaintiff cannot

establish personal jurisdiction over government officials of American Samoa under the District’s

long-arm statute); Simpson v. Fed. Bureau of Prisons, 496 F. Supp. 2d 187, 192 (D.D.C. 2007)

(rejecting argument that employment by the Federal Bureau of Prisons, the headquarters office

of which is in the District of Columbia, rendered its officials subject to suit in their individual

capacities in this district); Ali v. District of Columbia, 278 F.3d 1, 7 (D.C. Cir. 2002) (dismissing

claims of District of Columbia offender housed under contract in a Virginia facility against

Virginia officials in their individual capacities over whom this district court lacked personal

jurisdiction). The non-resident defendants are not subject to this Court’s jurisdiction solely by

virtue of their employment with a federal government agency.

                               B. Venue In This District Is Improper

        Defendants move for dismissal of this action for improper venue. See Defs.’ Mem. at 10-

11. “Courts in this jurisdiction must examine challenges to . . . venue carefully to guard against

the danger that a plaintiff might manufacture venue in the District of Columbia.” Cameron v.

Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993).

        In a civil action where the Court’s jurisdiction is not based solely on diversity of

citizenship, such as this case, venue is proper 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


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of the events or omissions giving rise to the claim occurred . . . 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); see Cameron, 983 F. 2d at 257 (applying general venue

provision of § 1391 to a Bivens action). Venue is not proper in this district under any of the

provisions of 28 U.S.C. § 1391(b): defendants do not all reside in the District of Columbia, no

substantial part of the events giving rise to plaintiff’s claim took place here, and this is not a case

in which no other district is available. Rather, a substantial part of the events giving rise to

plaintiff’s claims occurred in Rhode Island, which also is the district where all of the defendants

appear to reside.

                 C. This Action Will Be Transferred to the District of Rhode Island

        In a case filed in a jurisdiction in which venue is improper, the Court must either dismiss

the case, “or if it be in the interest of justice, transfer such case to any district . . . in which it

could have been brought.” 28 U.S.C. § 1406(a). The decision to transfer an action on this

ground is left to the discretion of the Court. See Novak-Canzeri v. Saud, 864 F. Supp. 203, 207

(D.D.C. 1993). The Court may transfer an action even though it lacks personal jurisdiction over

the defendants, Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983), and

transfer is appropriate under § 1406(a) “when procedural obstacles ‘impede an expeditious and

orderly adjudication . . . on the merits,’” Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir.

1983) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)); Crenshaw v. Antokol, 287

F. Supp. 2d 37, 45 (D.D.C. 2003) (stating that the “lack of venue should not bar resolution of the

plaintiff’s claims on the merits,” and transferring the case to the district where “venue would be

proper and the defendants would be subject to personal jurisdiction”). Such procedural obstacles


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include “lack of personal jurisdiction, improper venue, and statute of limitation bars.” Sinclair,

711 F.2d at 294.

       Assuming without deciding that plaintiff states viable claims, in the interest of justice, the

Court will transfer this action to the United States District Court for the District of Rhode Island.

See, e.g., Simpson, 496 F. Supp. 2d 187, 194 (D.D.C. 2007) (transferring prisoner’s civil action

brought under Bivens and the Federal Tort Claims Act to the district having “personal

jurisdiction over the two defendants most involved in the underlying disciplinary proceedings

and [where] venue” is proper); Zakiya v. United States, 267 F. Supp. 2d 47, 59 (D.D.C. 2003)

(transferring case involving challenge to national BOP policy to the district where the

“implementation of the national policy occurred”). It is in the District of Rhode Island where the

court may exercise personal jurisdiction, where venue is proper, and where the events giving rise

to plaintiff’s claims occurred.

       An Order accompanies this Memorandum Opinion.



                                  Signed:     EMMET G. SULLIVAN
                                              United States District Judge

                                  Dated:      August 27, 2010




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