Mamani v. Bustamante, Civil Action No. AW-07-2507.

• Decision Date: 15 April 2008
• Docket Number: Civil Action No. AW-07-2507.
• Citation: 547 F.Supp.2d 465
• Parties: Eloy Rojas MAMANI, et al., Plaintiffs, v. Gonzalo Daniel Sanchez de Lozada Sanchez BUSTAMANTE, Defendant.
• Court: U.S. District Court — District of Maryland

547 F.Supp.2d 465

Eloy Rojas MAMANI, et al., Plaintiffs, v. Gonzalo Daniel Sanchez de Lozada Sanchez BUSTAMANTE, Defendant.

Civil Action No. AW-07-2507.

United States District Court, D. Maryland, Southern Division.

April 15, 2008.

COPYRIGHT MATERIAL OMITTED

Tobias Eli Zimmerman, John L. Van Sickle, Steven H. Schulman, Akin Gump Strauss Hauer and Feld LLP, Washington, DC, David Rudovsky, Kairys Rudovsky Messing and Feinberg LLP, Philadelphia, PA, James L. Cavallaro, Tyler Richard Giannini, International Human Rights Clinic, Harvard Law School, Cambridge, MA, Jeremy F. Bollinger, Michael C. Small, Akin Gump Strauss Hauer and Feld LLP, Los Angeles, CA, Judith

Brown Chomsky, Law Office of Judith Brown Chomsky, Elkins Park, PA, for Plaintiffs.

Howard W. Gutman, Ana Cecilia Reyes, Gregory B. Craig, Williams and Connolly LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Plaintiffs Eloy Rojas Mamani, Etelvina Ramos Mamani, Sonia Espejo Villalobos, Hernan Apaza Cutipa, Jaun Patricio Quispe Mamani, Teofilo Baltazar Cerro, Juana Valencia De Carvajal, Hermogenes Bernabe Callizaya, Gonzalo Mamani Aguilar, and Felicidad Rosa Huanca Quispe (collectively "Plaintiffs"¹) bring this action against the ex-President of the Republic of Bolivia, Gonzalo Daniel Sanchez De Lozada Sanchez Bustamante ("Defendant" or "Defendant Sanchez de Lozada"), seeking compensatory and punitive damages against Defendant for his role in the massacre of Bolivian civilians. Currently pending before the Court is Defendant's Motion to Transfer Venue to the Southern District of Florida (Doc. No. 24). The Court has reviewed the entire record with respect to the instant motion. The Court held a hearing on this motion on April 7, 2008. See Local Rule 105.6 (D. Md. 2008).² The issues having been fully briefed and argued by the parties, this matter is now ripe for review. For the reasons set forth below, the Court will GRANT Defendant's Motion to Transfer.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Sanchez de Lozada was the democratically elected President of Bolivia from 1993 to 1997, and was re-elected to a second term that began in August 2002 and ended in October 2003. During his second term, opponents of the governing party began protesting the government's policies, specifically the economic programs. As a result of the protesting, violence began to brew in February 2003. In their complaint, Plaintiffs allege that Defendant used military force to silence opposition and intimidate the civilian population by killing demonstrators.³

The protests continued to grow in strength, which resulted in more violence. In September 2003, thousands of rural villagers, unions, and community groups began widespread protests and strikes to oppose government policies. On September 19, 2003, the head of the Bolivian Police declared a state of emergency in Bolivia. The protesting, attacks, and violence continued throughout the months of September and October, and many were killed or wounded, including protestors, bystanders, and police and military.⁴ On October 17, 2003, Defendant Sanchez de Lozada resigned as the President of the Republic of Bolivia, and, within hours of his resignation, departed Bolivia and flew to Miami, Florida.

On September 19, 2007, Plaintiffs filed suit against Defendant Sanchez de Lozada, asserting three claims for relief: (1) Extrajudicial Killing, pursuant to the Torture Victim Protection Act; (2) Crimes Against Humanity, pursuant to the Alien Tort Statute; and (3) violation of the Rights to life, liberty and security of person and freedom of assembly and association, pursuant to the Alien Tort Statute. On that same day, Plaintiffs also filed a virtually identical action (hereinafter the "Florida action") in the United States District Court for the Southern District of Florida against Jose Carlos Sanchez Berzain, who served as Minister of Defense during Defendant Sanchez de Lozada's presidency in Bolivia, seeking to collect tort damages for the very same events that took place in Bolivia.⁵

Defendant moves to transfer this action to the Southern District of Florida for the purpose of consolidating this action with the case filed in that district by the same plaintiffs and involving common issues of fact and law pertaining to both Defendants.

STANDARD OF REVIEW

Section 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a) (2008). The purpose of § 1404(a) is "to prevent the waste of time, energy, and money" and "to protect litigants, witnesses, and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); see also Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617 (D.Md.2002) (same). In a motion to transfer pursuant to § 1404(a), "the burden is on the moving party to show that transfer to another forum is proper." Lynch, 237 F.Supp.2d at 617.

The standards for transfer under § 1404 are: "(1) the transferee court must be a court in which the action could have been brought initially; (2) the transfer must be convenient to the parties and witnesses; and (3) the transfer must be in the interest of justice." Dow v. Jones, 232 F.Supp.2d 491, 499 (D.Md.2002). In deciding a motion to transfer venue under § 1404(a), the court must "weigh in the balance a number of case-specific factors." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). Courts are to consider the following factors: (1) the weight accorded to plaintiffs choice of forum; (2) witness convenience and access; (3) convenience of the parties; and (4) the interests of justice. Cross v. Fleet Reserve Ass'n Pension Plan, 383 F.Supp.2d 852, 856 (D.Md.2005). However, unless the balance of factors "is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." Collins v. Straight Inc., 748 F.2d 916, 921 (4th Cir.1984). The decision whether to transfer venue is committed to the sound discretion of the trial court. See Brock v. Elitre Computer Centers, Inc., 933 F.2d 1253, 1257 (4th Cir.1991).

DISCUSSION

The parties dispute whether this action could have initially been brought in the Southern District of Florida. Therefore, the Court must first decide this threshold jurisdictional issue before weighing the convenience factors.

I. Jurisdiction in the Southern District of Florida

Pursuant to Florida Statute § 48.193(2),⁶ Florida can exercise general personal jurisdiction over a defendant "who is engaged in substantial and not isolated activity" within Florida. As both parties note, Florida's statute is equivalent to the "systematic and continuous" contacts required for the exercise of general jurisdiction consistent with the Due Process clause of the federal constitution. See Am. Overseas Marine Corp. v. Patterson, 632 So.2d 1124, 1128 (Fla. 1st DCA 1994) ("The Florida courts have harmonized the language of section 48.193(2) with the constitutional due process requirements ... by holding that substantial and not isolated activity means `continuous and systematic general business contacts.'"); see also Travel Opportunities of Fort Lauderdale, Inc. v. Walter Karl List Mgmt, Inc., 726 So.2d 313, 314 (Fla. 4th DCA 1998) (same). Under the Due Process clause, in analyzing whether a nonresident has the requisite minimum contacts with a state to justify personal jurisdiction, courts should determine whether the non-resident's "conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Hatfield v. AutoNation, Inc., 915 So.2d 1236, 1242 (Fla. 4th DCA 2005) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). In determining whether Defendant has substantial contacts with Florida, Florida courts have also assessed the "collective effect of the defendant's activities" over "a period of years prior to the plaintiffs filing of the complaint." Dean v. Johns, 789 So.2d 1072, 1077-78 (Fla.Dist.Ct.App. 2001).

Defendant argues that Florida could have properly exercised personal jurisdiction over him, pursuant to Florida's longarm statute, where he maintains his primary personal checking account in Florida,⁷ has contracted with investment advisors in Florida to manage his personal investments, has retained several attorneys in Florida to handle his affairs and has had Florida attorneys under active retainer since 2003, has conducted media interviews in Miami, and has made a number of visits, for a multitude of reasons, to Florida.⁸ Defendant also contends that, from 1999 until 2002, he was a member of the Leadership Council for Inter-American Summitry, which' was a part of the North-South Center of the University of Miami. Moreover, from November 2005 to November 2007, Defendant claims to have contracted with a personal investment manager physically located in Miami who managed Defendant's accounts. Defendant also expressly authorized one of his Florida attorneys to serve as his agent for service of process with regard to his immigration matters.⁹

Plaintiffs, on the other hand, argue that these contacts are not "systematic and continuous" and amount to "no more than that of a typical tourist to the Sunshine State,"¹⁰ where Defendant maintains no residence in Florida, derives no income in Florida, and transacts no business in Florida. It appears to the Court that Plaintiffs have isolated each of Defendant Sanchez de Lozada's contacts in an attempt to prove that each isolated activity is insufficient to support the assertion of personal jurisdiction over Defendant in Florida. Indeed, the Court recognizes that any one of these contacts, standing alone, may not be deemed sufficient; however, the Court believes that such...