Andrade v. Chojnacki

• Decision Date: 03 April 1996
• Docket Number: Civil Action No. H-94-0923,H-95-0218,H-94-2153,H-95-0602,H-96-0256 and H-96-0139.,H-95-4246,H-95-1142,H-95-0587
• Citation: 934 F. Supp. 817
• Parties: Isabel G. ANDRADE, et al., Plaintiffs, v. Philip J. CHOJNACKI, et al., Defendants. HOLUB, et al. v. RENO, et al. FERGUSON, et al. v. RENO, et al. BROWN, et al. v. U.S. RIDDLE, et al. v. RENO, et al. GYARFAS, et al. v. U.S. MARTIN v. U.S. HOLUB, et al. v. U.S. BROWN, et al. v. U.S.
• Court: U.S. District Court — Southern District of Texas

934 F. Supp. 817

Isabel G. ANDRADE, et al., Plaintiffs, v. Philip J. CHOJNACKI, et al., Defendants.

HOLUB, et al. v. RENO, et al.

FERGUSON, et al. v. RENO, et al.

BROWN, et al. v. U.S.¹

RIDDLE, et al. v. RENO, et al.

GYARFAS, et al. v. U.S.

MARTIN v. U.S.

HOLUB, et al. v. U.S.

BROWN, et al. v. U.S.

Civil Action Nos. H-94-0923, H-94-2153, H-95-0218, H-95-0587, H-95-0602, H-95-1142, H-95-4246, H-96-0256 and H-96-0139.

United States District Court, S.D. Texas, Houston Division.

April 3, 1996.

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Tracey D. Conwell, Caddell & Conwell, Houston, TX, Michael A. Caddell, Joe Phillips, Caddell & Conwell, Houston, TX, for plaintiffs.

R. Joseph Sher, Nina S. Pelletier, Dept. of Justice, Washington, DC, Daniel David Hu, U.S. Attorneys Office, Houston, TX, for defendants.

Walter Reed Lockhoof, TX Attorney General's Office, Austin, TX, for Ann Richards.

Kirk David Lyons, Black Mountain, NC, for Oliver Gyarfas, Individually and as Administrator of the Estate of Aisha, Elizabeth Gyarfas, Individually and as Administrator of the Estate of Aisha, and Misty Dawn Ferguson.

Marie Louise Hagen, U.S. Dept. of Justice, Washington, DC, for the United States of America.

Michael A. Caddell, Caddell & Conwell, Houston, TX, for Helen Martin.

MEMORANDUM AND ORDER

ATLAS, District Judge.

Pending before the Court are the United States' and the Individual Defendants' Motions to Dismiss or Transfer for Improper Venue Docs. # 21, 75, 85, 88, 121-1, 155-1, 156-1, 157-2, 158-1 and 159-1, the United States' and the Individual Defendants' Motions to Sever and to Set Separate Submission Dates for the Motions to Dismiss for Improper Venue Docs. # 78 and 86, and numerous motions to dismiss and for summary judgment.² For the reasons discussed below, Defendants' Motions to Sever and to Transfer for Improper Venue are GRANTED. The Court further ORDERS that this action be transferred to the Western District of Texas, Waco Division, where venue is properly laid for Plaintiffs' Bivens and Sections 1983 and 1985(3) claims and the majority of claims asserted under the Federal Tort Claims Act ("FTCA"). In the interest of avoiding piecemeal litigation, the remainder of Plaintiff's FTCA claims, as well as all Racketeer Influenced and Corrupt Organization ("RICO") claims against the Individual Defendants, will be transferred to the Western District pursuant to 28 U.S.C. § 1404(a). For the reasons discussed below, Plaintiffs' RICO claims against the United States are DISMISSED.

I. FACTUAL BACKGROUND

The facts as alleged by Plaintiffs are as follows. On February 28, 1993, over 100 agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") stormed the Mount Carmel Church (a home and place of worship for over 100 Branch Davidians) with semi-automatic weapons, concussion grenades and army helicopters in an attempt to serve an arrest warrant for David Koresh and a search warrant for the church. Plaintiffs' Consolidated Complaint ("Consolidated Complaint"), at 1-2. Some of the Branch Davidians used firearms to defend the Church against the government action. As a result of this incident, many Branch Davidians and federal agents were killed or wounded. Id. at 2.

After the failed assault on the Mount Carmel Church, ATF and Federal Bureau of Investigation ("FBI") agents surrounded and laid siege to the Church for 51 days. Id. at 2. These Defendants allegedly began assaulting the Branch Davidians by turning off their electricity when overnight temperatures night fell to 20° F; continuously shining searchlights at the compound at night; blaring loud noises, including the screams of rabbits being slaughtered; and tightening the perimeter around the Church with an advancing armored force. Id.

On or about April 14, 1993, David Koresh promised the federal agents that everyone in the Church would surrender peacefully. However, on April 19, 1993, federal agents used tanks to crush Church buildings and insert CS gas, thereby disabling and injuring the Branch Davidians. Id. at 2-3. Subsequently, a fire began and rapidly consumed the Church. Id. at 3. Most Davidians were trapped inside, because the tanks had crushed staircases and blocked exits, and the CS gas impeded their escape. Id. Many died from the fire, smoke and CS gas inhalation, and falling debris, while others seem to have committed suicide or been killed by fellow Branch Davidians, allegedly in a mercy killing. Id. At least 80 adults and children lost their lives during the April 19th assault, id. at 10, many of whom are Decedents of Plaintiff families in this lawsuit.

Plaintiffs have brought suit against the United States, numerous federal officials, and former Governor Ann Richards and members of the Texas National Guard³ seeking damages for claims arising out of the alleged attack on the Mount Carmel Church in February 1993, the 51-day siege by federal agents, and the final assault on the Church in April 1993. Plaintiffs assert claims under the FTCA, 28 U.S.C. §§ 2671 et seq.; 42 U.S.C. §§ 1983 and 1985(3);⁴ civil RICO, 18 U.S.C. § 1964(c); and under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Bivens"), for alleged violations of their constitutional rights.

II. DEFENDANTS' MOTIONS TO SEVER

Plaintiffs argue that the Court must address Defendants' jurisdictional arguments⁵ before deciding whether to dismiss or transfer this case pursuant to either 28 U.S.C. § 1404(a)⁶ or § 1406(a).⁷ In support of this argument, Plaintiffs cite Supreme Court and Fifth Circuit precedent for the proposition that

"the doctrine of forum non conveniens can never apply in the absence of jurisdiction or mistake of venue." In the normal case, therefore, the District Court must first determine that it possesses both subject matter and in personam jurisdiction before it resolves a forum non conveniens motion.⁸

Syndicate 420 at Lloyd's London v. Early American Ins. Co., 796 F.2d 821, 827 n. 8 (5th Cir.1986) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 841, 91 L.Ed. 1055 (1947)).⁹ Plaintiffs cite a district court decision for the proposition that the Court may not order a section 1406(a) transfer without first determining that it has subject matter jurisdiction over their claims. See Naegler v. Nissan Motor Co., Ltd., 835 F.Supp. 1152, 1157 (W.D.Mo.1993) ("as under section 1404(a) in order to effect a section 1406(a) transfer the Court must have jurisdiction over the subject matter but need not have jurisdiction over the person of the defendant").

Plaintiffs correctly argue that the Court may not order a transfer under either section 1404(a) or section 1406(a) unless it has jurisdiction over the subject matter of their lawsuit. See 15 Charles A. Wright, Arthur Miller & Edward H. Cooper, Federal Practice and Procedure § 3827, at 262, and § 3844, at 332 (2d ed. 1986). Because transfer is ordered pursuant to both these sections, the Court must address Plaintiffs' contention that Defendants' jurisdictional arguments must be addressed preliminarily, before this action may be transferred to the Western District of Texas. See, e.g., Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714-15, 61 L.Ed.2d 464 (1979) (a court normally considers challenges to its jurisdiction before determining whether venue is proper).

While superficially somewhat appealing Plaintiff's argument is ultimately unpersuasive, since this is not a case in which subject matter jurisdiction is facially lacking and which, therefore, requires dismissal. See, e.g., D. Hittner, Federal Civil Procedure Before Trial ¶ 4:23 (1994) (the absence of complete diversity mandates dismissal prior to consideration of any venue issues by a district court). On the contrary, the Court has federal question jurisdiction over all the claims asserted by Plaintiffs in this lawsuit:

• The Court has jurisdiction over the Bivens claims pursuant to 28 U.S.C. § 1331.

• The Court has jurisdiction over the Section 1983 and Section 1985(3) claims pursuant to 28 U.S.C. § 1331.

• The Court has jurisdiction over the FTCA claims pursuant to 28 U.S.C. § 1346(b).¹⁰

• The Court has jurisdiction over the RICO claims pursuant to Section 1964(a).¹¹

Plaintiffs argue that dispositive motions must be decided preliminarily. However, they cite no cases holding that jurisdictional defenses must be resolved before a court may consider a transfer pursuant to Section 1404(a) or Section 1406(a).¹²

While decision on Defendants' substantive motions might obviate the need for determining the transfer motions, "an important element in the litigation, such as a motion for summary judgment, should not be decided by the transferor court but should be adjudicated by the court that has responsibility for ultimately deciding the case." Gold v. Scurlock, 290 F.Supp. 926, 929 (S.D.N.Y. 1968) (citing United States v. Swift & Co., 158 F.Supp. 551, 560 (D.D.C.1958)). If the converse were true, Sections 1404(a) and 1406(a) would be undermined, because judicial economy would dictate that the court that decided the substantive motions retain jurisdiction, even if venue were properly laid in two districts or improperly laid in the original forum. Therefore, because the Court need not rule on Defendants' substantive motions before deciding the transfer motions, Defendants' motions to sever the venue motions from the motions to dismiss and for summary judgment are GRANTED.

III. MOTIONS TO DISMISS OR TRANSFER FOR IMPROPER VENUE

A. Plaintiffs' Bivens and Sections 1983 and 1985(3) Claims

The venue provision applicable to Plaintiffs' constitutional claims is 28 U.S.C. § 1391(b)(2), which provides that a civil action in which jurisdiction is not founded solely on diversity may be brought only in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred."¹³ Plaintiffs allege that venue...