MEMORANDUM AND ORDER
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 Plaintiffs 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
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 sereams 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 Guard
3
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,
II. DEFENDANTS’MOTIONS TO SEVER
Plaintiffs argue that the Court must address Defendants’ jurisdictional arguments
5
before deciding whether to dismiss or transfer this ease pursuant to either 28 U.S.C. § 1404(a)
6
or § 1406(a).
7
In support
“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.,
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.,
While superficially somewhat appealing Plaintiffs 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
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,
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 for the Bivens, Section 1983 and Section 1985(3) claims is proper in the Southern Distriet of Texas because a substantial part of the events giving rise to the claims occurred in Houston:
a. The federal government’s planning and supervision of its investigation of the Davidians and the government’s planning of the February 28, 1993 raid on the Mount Carmel Church occurred in Houston. This planning, supervision, investigation and February 28th assault were the intentional initiation of the entire affair giving rise to Plaintiffs’ claims.
b. Decisions were made in Houston to, among other things, (1) target the Davidians, including the Decedents and Survivors, for an investigation and armed assault; (2) seize the Davidians, including the Decedents and Survivors, in a February 28th raid; (3) seize the Davidians, including the Decedents and Survivors, without a warrant or probable cause; (4) arrest David Koresh using an armed assault on the Church rather than during one of his trips to Waco or Dallas, Texas; (5) arrest David Koresh on a day when the federal government knew that over 75 innocents, including the Decedents and Survivors, would be in the Church; and (6) execute the Warrants by a frontal assault rather than a siege.
c. But for the decisions in Houston to investigate and assault the Davidians and the decisions in Houston to attack the Davidians with a frontal assault, the 51-day siege and the April 19th final assault, bombardment, and fire would not have occurred.
Although the Court is satisfied that decisions were made in Houston (as well as in other cities in Texas) regarding the execution of the arrest and search warrants, 14 the record demonstrates that no substantial part of the acts or omissions giving rise to Plaintiffs’ claims occurred in the Southern District of Texas. The events in Houston have an insufficient relationship to Plaintiffs’ claims for injuries to support venue in the Southern District of Texas. Houston, in fact, is mentioned only in the venue section of the Consolidated Complaint. As Plaintiffs themselves concede, the acts alleged to have caused injury, and for which compensatory and punitive damages are sought, occurred in Waco, in the Western District of Texas. Waco is where the Mount Carmel Church was located and where Decedents and Survivors resided; Waco is where service of the warrants and the February 28th shootout took place; and Waco is where the 51-day siege and the fire that destroyed the Church occurred. Consolidated Complaint, at 5-9.
Moreover, as the Brown Plaintiffs aver,
[Plaintiffs’] claims arise from physical attacks on the Mt. Carmel Church Center near Waco, Texas on February 28 and April 19, 1993 and the siege, forced containment and escalating assaults on the Church and its members between those two dates.
First Amended Complaint in Brown [Doc. # 23], ¶ 93. 15 There can be no clearer statement that a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in Waco rather than in Houston. Indeed, as the Gyarfas Plaintiffs conceded in identical actions originally filed in the Western District of Texas,
Venue is proper in the Western District of Texas, Waco Division, as all incidents and occurrences as alleged below occurred in this district.
Complaints in
Gyarfas, et al. v. United States, et al.,
W-95-CA-022 (W.D.Tex. April 12, 1995)
(“Gyarfas II
”) and
Gyarfas, et al. v. United States, et al.,
W-93-CA-334 (W.D.Tex. April 25, 1995)
(“Gyarfas
I”), at ¶ 2.1 (emphasis added).
16
The
Gyarfas
Plaintiffs’ voluntary dismissal of these actions in the Western District of Texas and the subsequent filing of a lawsuit in the Southern District strongly suggest forum-shopping.
17
Venue rules were designed precisely in order to prevent such conduct.
See League of United Latin American Citizens, Council No. 4434 v. Clements,
Plaintiffs’ argument that venue is proper in Houston relies heavily on
Checki v. Webb,
The chase for some 25 miles in the Eastern District of Louisiana was in fact the intentional initiation of the whole affair ... This is clearly one of those cases where there are “two districts that with approximately equal plausibility ... may be assignees as the locus of the claim.”
Checki,
Plaintiffs argue that
Checki
is analogous to the case at bar insofar as the federal government’s planning and supervision of its investigation into the Davidians and its planning of the February 28th assault on the Mount Carmel Church (all of which occurred in Houston) were the “intentional initiation of the whole affair.”
19
Plaintiffs’ Response to
First, as the Checki Court noted, the building blocks for Plaintiffs Section 1983 claim against the police were laid in the Eastern District of Louisiana, where the unprovoked police chase largely occurred. 20 As the Court of Appeals explained, the chase itself was potentially unconstitutional:
It cannot be reasonably argued that no serious physical danger confronts civilians who are forced to travel at speeds over 100 mph in their attempt to flee a terrorizing police officer. Furthermore, there is no valid reason for insisting on physical injury before a section 1983 claim can be stated in this context. A police officer who terrorizes a civilian by brandishing a cocked gun in front of that civilian’s face may not cause physical injury, but he has certainly laid the building blocks for a section 1983 claim against him. Where a police officer uses a vehicle to terrorize a civilian, and he has done so with malicious abuse of official power shocking to the conscience, a court may conclude that the officers have crossed the “constitutional line.”
Checki,
Moreover, the offending conduct in Checki (the car chase and the police beating) involved the same defendants and took place within the course of several hours, on a single day. Constitutionally significant events occurred in both judicial districts and led, in an unbroken chain of events, to the injuries inflicted on the plaintiff. In contrast, in the case at bar, several months elapsed between the events that allegedly transpired in Houston and the injuries that subsequently occurred in Waco, with numerous intervening actions by other Defendants in different locations. By the date of the FBI’s final assault on April 19, 1993,. approximately three months had passed since the last planning meeting in Houston in late January. Moreover, there is no evidence that the decision to storm the Church on April 19th was made in Houston.
Checki
is also distinguishable from the ease at bar because here the chain of events that allegedly began in Houston and ended in Waco included crucial decisions and conduct of the Branch Davidians themselves. Notwithstanding the frontal assault on February 28th, the Davidians refused to permit execution of the arrest and search warrants for David Koresh and the Mount Carmel
A close review of this record leaves the Court unpersuaded that planning decisions made in Houston were “the intentional initiation of the whole affair,” as argued by Plaintiffs. Therefore, the Court finds that planning decisions allegedly made in Houston are insufficient to lay venue in the Southern District of Texas as to Plaintiffs’ Bivens and Sections 1983 and 1985(3) Claims.
B. Plaintiffs’ F.T.C.A. Claims
The venue provision for claims under the Federal Tort Claims Act (“FTCA”) is 28 U.S.C. § 1402(b), which provides that “[a]ny civil action on a tort claim against the United States ... may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission occurred.” Plaintiffs argue that venue is proper in Houston for their FTCA claims because the administrators of some of the Decedents’ estates reside in Houston, 23 and because a substantial part of the acts or omissions complained of occurred in Houston. Consolidated Complaint, at 10.
The Court has already determined that no substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in Houston and, thus, venue in this district is not proper. The same analysis is applicable to Section 1402(b), which arguably is less flexible than Section 1391(b) in accommodating Plaintiffs’ choice of forum. 24 Therefore, the Court finds that venue is not proper in the Southern District of Texas as to the FTCA claims.
The Court must carefully consider Plaintiffs’ argument that venue for their FTCA claims is proper in Houston, insofar as Tracy Conwell, the administrator in Andrade and Martin, Steven Thompson, whom Plaintiffs aver will be administrator in Ferguson and Gy arfas, 25 * and Jean Holub and Bobby Wayne Howell, co-administrators in Holub, all reside in Houston. The claims of each administrator must be considered in turn in order to assess the merits of Plaintiffs argument.
Conwell FTCA Claims.
— Tracy Conwell is the administrator for 36 estates in
Andrade
and
Martin.
26
There are no allegations that Ms. Conwell knew or had a per
The Court, as a matter of equity, will not condone the circumvention of the spirit of the federal venue provisions, particularly in a case in which' Plaintiffs’ claims clearly “arose” in another district and where identical claims originally were filed in the Western District. If venue were sustainable solely on the basis of Ms. Conwell’s appointment under the circumstances at bar, then wrongful death plaintiffs in FTCA cases could sue in any district that tangentially touches a case, so long as they retained counsel to serve as an administrator of the Decedent’s estate in that district. The venue rules enacted by Congress cannot be construed to permit this result.
The Court finds, therefore, that Conwell’s residence in Houston is insufficient under these circumstances to lay venue in the Southern District of Texas. Because the significant events underlying these claims occurred in Waco, the FTCA claims administered by Tracy Conwell will be transferred to the Western District of Texas. 28
Thompson FTCA Claims. — Plaintiffs indicated in late November 1995 that Steven Edward Thompson would shortly be appointed administrator in Ferguson and Gyarfas. Plaintiffs’ Response, at 2. However, there is no indication in the Consolidated Complaint, filed in mid January 1996, or in any other subsequently filed pleading (as far as the Court can ascertain) that Thompson, in fact, was ever appointed administrator. Therefore, for the purpose of laying venue in the Southern District of Texas, Thompson’s purported residence in Houston is irrelevant. Because none of the other administrators in Ferguson or Gyarfas is alleged to reside in Houston, venue is improper in the Southern District of Texas for the FTCA claims in those cases. 29
Holub FTCA Claims.
— Because Jean Holub and Bobby Wayne Howell reside in the Southern District of Texas, venue is proper in Houston for the FTCA claims asserted in
Holub.
However, because Holub and Howell represent only three estates in a single action, their residence in Houston is insufficient to lay venue in the Southern District of Texas for all claims in their action or in the consolidated action. Since venue is improper in Houston for the majority of these claims (including the
Bivens
and Sections 1983 and 1985(3) claims asserted in Holub), the Court finds that, in the interest of avoiding piecemeal litigation, the FTCA claims in
Holub
should be transferred to the
C. Plaintiffs’RICO Claims
Plaintiffs’ Contentions Generally. — The venue provision applicable to RICO claims is 18 U.S.C. § 1965(a), which provides that “[a]ny civil action or proceeding under [RICO] against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.” Plaintiffs argue that venue is proper in Houston for their RICO claims because the United States “is found, has an agent and transacts its affairs in the Southern District,” and because “Defendant ChojnaeM also resides here.” Plaintiffs’ Response, at 5. Plaintiffs further argue that, in the interest of justice, the Court should assert venue over the remaining individual defendants, because “there is no other district, including the Western District, where all individual Defendants reside, are found, have an agent, or transact their affairs.” Id.. The Court finds Plaintiffs’ arguments unavailing.
Plaintiffs’ RICO Claims against the United States.
— The Court holds that Plaintiffs cannot state a claim against the United States for the actions of its agencies under RICO. Absent an express waiver of sovereign immunity, a RICO action cannot be maintained against the United States.
See, e.g., United States v. Bonanno Organized Crime Family of La Cosa Nostra,
Because Plaintiffs have failed to state a claim for which relief can be granted, their RICO claims against the United States are insufficient to lay venue in the Southern District of Texas. 31
Plaintiffs’ RICO Claims against the Individual Defendants.
— It appears that the only individual RICO Defendant who resides in Houston is Phillip Chojnacki, who is sued only in Ms individual capacity.
See
Plaintiffs’ Response, at 5. Assuming Chojnacki was and still is a resident of Houston (making venue proper for tMs claim in the Southern District) judicial economy nevertheless dictates transfer of tMs case to Waco. For the reasons discussed above, venue is not proper in Houston for the vast majority of Plaintiffs’ non-RICO claims. The individual RICO defendants may all be sued in the Western District of Texas, because at least one, if not several, reside in that district. By authorizing nationwide service of process, 18 U.S.C. § 1965(b) enables Plaintiffs to bring before a single court all members of a nationwide RICO conspiracy.
Butcher’s Union Local No. 198, United Food and Commercial Workers v. SDC Inv., Inc.,
Therefore, in the interest of justice, all RICO claims asserted against Defendants in their individual capacities will be transferred to the Western District of Texas pursuant to Section 1404(a).
Cf. Kempe v. Ocean Drilling & Exploration Co.,
D. Transfer of Claims Pursuant to Section 1404(a)
Because venue is improper in Houston for the majority of Plaintiffs’ claims, those claims must be transferred to the Western District pursuant to Section 1406(a). However, the few claims for which venue is proper in both Waco and Houston — the FTCA claims administered by Jean Holub and Bobby Wayne Howell and the RICO claims against the Individual Defendants— •will be transferred pursuant to Section 1404(a), which provides for transfer when venue is proper in more than one judicial district. The purpose of Section 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.”
State Street Capital Corp. v. Dente,
Under Section 1404(a), the party moving for transfer has the burden of demonstrating that a change of venue is warranted.
State Street,
For the reasons discussed above, venue is properly laid in the Western District of Texas for all FTCA claims in this lawsuit, as well as for the RICO claims asserted against the Individual Defendants. Moreover, the district court for the Western District of Texas has subject matter jurisdiction over all these claims.
When considering whether a transfer is warranted under Section 1404(a), the Court must consider the following factors: plaintiffs choice of forum; the availability and convenience of witnesses and parties; the location of counsel; the location of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong; and the possibility of delay and prejudice if transfer is granted.
Americas Ins. Co. v. Engicon, Inc.,
Plaintiff’s Choice of
Forum.— Plaintiffs do not seem to dispute the fact that venue is proper in Waco for the majority of their claims. Instead, they argue that, because venue allegedly is also proper in Houston, deference should be afforded their choice of forum. While there is ordinarily a strong presumption in favor of plaintiffs choice of forum, this factor is not significant where, as in the case at bar, the action has relatively little relationship to the chosen forum.
See, e.g., Turner & Newall, PLC v. Canadian Universal Ins. Co.,
The convenience of the Holub plaintiffs weighs against transfer, since both co-administrators reside in Houston. However, because the Bivens claims in Holub are improperly venued in Houston, judicial economy dictates that the case be transferred in its entirety to the Western District of Texas. Moreover, apart from Tracy Conwell and the Holub administrators, none of the more than 200 Plaintiffs in this lawsuit is alleged to reside in Houston. Therefore, the convenience of the parties is largely unaffected by the transfer of this action to the Western District.
Location of Books and Records.— Plaintiffs argue that the bulk of evidence in this ease (i.e., documents, videos and other materials) is located outside Waco, either in Washington, D.C. or at the F.B.I. laboratories in Quantieo, Virginia. Plaintiffs further argue that there is no need for a visit to the Mount. Carmel Church site, because it was leveled by the government in May 1993. Because no evidence is alleged to be located in Houston, however, this factor weighs neither for nor against transfer to the Western District.
Cost of Obtaining Attendance of Witnesses and Other Trial Expenses. — The Court finds that, for the reasons discussed in its convenience of parties and witnesses analysis, the cost of obtaining attendance of witnesses and other trial expenses weighs in favor of transfer.
Place of Alleged Wrong. — Because Plaintiffs’ alleged injuries occurred in the Western District of Texas, this factor weighs strongly in favor of transfer.
Location of Counsel.
— Plaintiffs argue that, because two of the law firms representing them are located in Houston, a Waco venue will be significantly more expensive.
36
However, the location of counsel is entitled to little or no weight in the Court’s transfer analysis.
Bevil,
Possibility of Delay and Prejudice if Transfer is Granted. —Comparative
E. The Possibility of a Fair Trial in Waco
Plaintiffs allege that inflammatory, prejudicial publicity has so pervaded the Waco community that it is impossible for them to get a fair trial by an impartial jury drawn from that community. Plaintiffs’ Response, at 16. Plaintiffs point to articles in the Waco Herald-Tribune characterizing David Koresh as a child abuser and rapist and describing the Branch Davidians as “dangerous,” “sinister” and a “menace to [the] community.” Id. at 16-17. Plaintiffs further maintain that local press coverage was so hostile that the 1994 criminal trial of certain Davidians who survived the April 19th fire was moved to San Antonio, Texas. Id. at 17.
Finally, Plaintiffs argue that Judge Walter Smith, who would preside over this action, was unfairly prejudiced by the prosecutions’ characterization of Defendants in the 1994 case and, as a result, is biased against Decedents and Survivors and their claims. Id. Plaintiffs maintain that this bias is evidenced by the first two' pages of Smith’s Sentencing Findings and Opinion, in which most of the major issues in this lawsuit allegedly have been prejudged. 38
The Court remains unconvinced that Judge Smith’s rulings evidence bias against the Plaintiffs or the claims in this lawsuit. In order for a judge to be disqualified on the grounds that he or she is biased, the bias or prejudice attributed to the judge must stem from an extrajudicial source and must result in an opinion on the merits on some basis other than what the judge learned from his or her participation in the case.
United States v. Grinnell Corp.,
384
In a different vein, this Court shares Plaintiffs’ concern that the Waco community may be hostile to the Survivors and Decedents, and that Plaintiffs therefore cannot get a fair jury trial in Waco. However, this concern does not prevent transfer of these cases. Should Plaintiffs’ concerns prove justified and should the bias persist through the years during which discovery is conducted, and should there be a right to a jury trial on claims that survive after the Defendants’ motions are decided, then this case may be transferred for trial to another division in the Western District pursuant to Section 1404(a). 39
Finally, because Judge Smith has already addressed many of the substantive issues in this case, judicial economy dictates that he decide Defendants’ dispositive motions (many of which raise precisely the same issues on which Smith ruled in Gyarfas I). 40 Should Defendants’ motions be denied, and the case proceed to trial, Plaintiffs may move for transfer to another division at that time in the Western District 41
IV. ORDER
It is hereby
ORDERED that the consolidated action be transferred to the Western District of Texas, Waco Division, pursuant to the following statutory provisions:
1. Plaintiffs’ Bivens and Sections 1983 and 1985(3) claims are transferred pursuant to Section 1406(a);
2. the FTCA claims administered by Tracy Conwell and Stephen Thompson are transferred pursuant to Section 1406(a);
3. the FTCA claims administered by Jean Holub and Bobby Wayne Howell are transferred pursuant to Section 1404(a);
4. the RICO claims asserted against the Individual Defendants are transferred pursuant to Section 1404(a); it is further
ORDERED that the RICO claims asserted against the United States are DISMISSED.
Notes
. The following dispositive motions have been filed in Andrade:
1. Dennis’s Motion for Summary Judgment [Doc. #23];
2. United States' Motion to Dismiss and for Summary Judgment in Andrade and Martin [Doc. # 121];
3. United States' Motion to Dismiss and for Summary Judgment as to the Third Amended Complaint in Andrade and the First Amended Complaint in Martin [Doc. # 155];
4. United States’ Motion to Dismiss and for Summary Judgment as to the Second Amended Complaint in Ferguson [Doc. # 156];
5. United States' Motion to Substitute United States for the Individual Federal Defendants, to Dismiss and for Summary Judgment as to the First Amended Complaint in Brown [Doc. #157];
6. United States' Motion to Dismiss and for Summary Judgment as to the First Amended Complaint in Riddle [Doc. # 158]; and
7. United States' Motion to Dismiss and for Summary Judgment as to the First Amended Complaint in Gyarfas [Doc. # 159].
Dispositive motions also have been filed in Ferguson, Riddle, Gyarfas and Brown. With the exception of motions to dismiss filed by former Governor Arm Richards in Brown, the Court assumes that the pending motions in the consolidated actions have been subsumed by the substantive motions in Andrade.
. Claims against Ann Richards and Texas state officials appear only to be asserted in Brown.
. Section 1985(3) provides a cause of action for victims injured by conspiracies to deprive them of their civil rights.
. Defendants argue, for example, that the discretionary function exception to the Federal Tort Claims Act deprives the Court of jurisdiction, that the United States has not waived sovereign immunity for claims arising under the RICO statute, and that, because the Brown plaintiffs failed to exhaust their administrative remedies before filing suit in federal court (as required under the Federal Tort Claims Act), the Court lacks jurisdiction over these claims. See Memorandum of Law in Support of United States’ Motion to Transfer, to Dismiss, and for Summary Judgment [Doc. # 11 in Brown ], at 13-44.
. Section 1404(a) provides for change of venue when venue is proper in more than one judicial district or division:
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). This section "operates on the premises [sic] that the plaintiff has properly exercised his venue privilege.”
Van Dusen v. Barrack,
. Section 1406(a) provides for change of venue when venue is improper in the original forum:
The district court of a district in which is hied a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
28 U.S.C. § 1406(a).
. Contrary to this language, the Supreme Court has held that a court that has subject matter jurisdiction and is a proper venue may transfer an action pursuant to Section 1404(a), regardless of whether it has in personam jurisdiction.
Goldlawr, Inc. v. Heiman,
. Section 1404(a) codified the common law doctrine of
forum non conveniens,
although the statutoiy provision for transfer eliminated the harshest part of the doctrine,
i.e.,
dismissal of the action.
See Norwood v. Kirkpatrick,
. Plaintiffs’ Complaints (and now the Consolidated Complaint in Andrade) correctly allege these jurisdictional bases.
. The Court does not intend to imply any ruling on whether Plaintiffs have stated a legally cognizable claim under any of these theories.
. The case law cited by Plaintiffs stands only for the proposition that a court must have subject matter jurisdiction over an action before considering a motion to transfer. Defendants, on the contrary, cite precedent which, although not controlling, directly counters Plaintiffs’ argument that the dispositive motions must be decided before the transfer motions.
See, e.g., Gold v. Scurlock,
. To the extent that constitutional claims are asserted against the United States or federal officials sued in their official capacities, the applicable venue provision is 28 U.S.C. § 1391(e)(2), which provides for venue in any judicial district in which "a substantial part of the events or omissions giving rise to the claim occurred.” Because the language in Sections 1391(b)(2) and 1391(e)(2) is identical, the Court's venue analysis is applicable to all constitutional claims, i.e., those asserted against the United States (or defendants sued in their official capacities) as well as against federal officials sued in their individual capacities.
. Plaintiffs make much of the fact that allegedly critical planning decisions were made in Houston. However, the Treasury Department report indicates that, in late December 1992, tactical planners also met in Austin, in the Western District of Texas, and reviewed reports of interviews of former Branch Davidians and new photographs of the Compound. This information presumably informed Defendants of facts that played into their decisions regarding execution of the warrants, i.e., a "dynamic entry” strategy was eventually chosen in lieu of a siege.
. The Brown Plaintiffs are separately represented and, unlike other Plaintiffs, have not included an amended complaint in the Consolidated Complaint filed in Andrade, Riddle, Martin, Ferguson, Gyarfas and Holub. The Court therefore considers the First Amended Complaint in Brown the operative complaint in that action.
. In Gyarfas I, Plaintiffs asserted claims arising out of events at Waco pursuant to the Federal Tort Claims Act, RICO, 42 U.S.C. §§ 1983, 1988, 1985(3), 1986 and 1988, the First, Second, Fourth, Fifth and Fourteenth Amendments, and Texas common law. In Gyarfas II, Plaintiffs asserted claims pursuant to the Federal Tort Claims Act, 42 U.S.C. §§ 1983, 1988, the First, Fourth, Fifth and Fourteenth Amendments, and Texas common law. In the consolidated action before this Court, the Gyarfas Plaintiffs assert claims against the United States pursuant to RICO and the Federal Tort Claims Act.
. Gyarfas II was voluntarily dismissed on April 12, 1995 [Doc. # 4 in Gyarfas III. Gyarfas I was dismissed pursuant to agreement of the parties on April 25, 1995 [Doc. # 69 in Gyarfas I]. The Gyarfas action before this Court was filed on April 19, 1995.
. There seems to be a dearth of Fifth Circuit case law construing Section 1391(b), which was amended in 1990 to provide that venue could properly be laid in more than one judicial district. While the pre-1990 version of Section 1391(b) referred to the district "in which the claim arose,” the current version of the statute refers to the district where "a substantial part of the events or omissions giving rise to the claim occurred.” Defendants cite a pre-amendment district court decision,
Thornwell v. United States,
. Plaintiffs allege that the following critical planning decisions were made in Houston:
1. Defendant Phillip Chojnacki, the Special Agent in charge of the Houston ATF office, who was located in Houston, approved the initiation of the Davidian investigation.
2. The ATF Field Office in Houston directed the development of probable cause for the warrants.
3. Defendant Charles Sarabyn, the Assistant Special Agent in charge of the Houston ATF office, who was located in Houston, supervised the investigation and was responsible for tactical planning to execute the warrants.
4. A meeting which planned the execution of the warrants occurred in Houston on December 4, 1992.
5. A second planning meeting occurred in Houston in late January 1993. During this meeting, the tactical planners decided to use a frontal assault rather than more peaceful options.
These allegations are supported by the Treasury Department's Report on ATF's Investigation of David Koresh.
See
Plaintiffs' Response to Defen
. The initiating events and high-speed police chase began and continued for more than twenty miles in the Eastern District of Louisiana. The chase ended six miles inside the Middle District boundary, where the beating of the plaintiff took place.
. The intimidation tactics allegedly used by the federal agents at Waco (e.g., turning off the Davidians' electricity in below-freezing temperatures and blaring recordings of the screams of rabbits being slaughtered) may have crossed the constitutional line. The Court does not reach this question; it is raised only to distinguish Checki.
. ATF began an investigation of David Koresh on June 9, 1992 for the illegal manufacture of machine guns from component parts and the illegal manufacture and possession of destructive devices, including explosive bombs and grenades, and the materials to produce such items. Original Complaint in Gyarfas [Doc. # 1], at 7. As a result of this investigation, ATF presented information to the U.S. Attorney’s office in February 1993 for the purpose of obtaining an arrest warrant for David Koresh and a search warrant for the Mount Carmel Church.
. “Where the plaintiff resides” is determined by the residence of the administrator for purposes of venue under the FTCA.
See MacGuineas v. United States,
No. 87-855 SSH,
. Venue may be equally correct in two judicial districts trader Section 1391(b).
See Checki v. Webb,
Application of the statutory language "wherein the act or omission complained of occurred” is goveraed by a “preponderance of the contacts test.”
See Johns-Manville Corp. v. United States,
. Plaintiffs’ Response, at 2.
. Plaintiffs' Amended List of Persons with Substantial Knowledge of Events Giving Rise to Plaintiffs’ Claims [Doc. # 126] indicates that. Conwell is administrator for 36 estates, while the Consolidated Complaint [Doc. #136] indicates that she is administrator for 27 estates.
. Conwell was listed as counsel on the original and the amended complaints in Andrade [Doc. # 1 and #36]. Her name' was not removed from the pleadings until September 1994, the Original Complaint having been filed some six months earlier, in March.
. ' Even if the Southern District of Texas were the proper venue for the FTCA claims administered by Ms. Conwell, venue is still improper in Houston for the constitutional claims brought under Bivens and Sections 1983 and 1985(3), many of the RICO claims, see infra at 831-832, and the FTCA claims brought by administrators (other than Conwell, Thompson, Holub and Howell) who reside outside the Southern District of Texas, as in Andrade, Ferguson, Gyarfas and Brown. In this regard, Plaintiffs ask the Court to assert pendent venue over those claims for which venue is otherwise improper in this district. Plaintiffs' Response, at 6. Because venue is improper in this district for the majority of Plaintiffs’ claims, and because these complex cases should be managed and tried as a group, the more prudent and judicially efficient course is to transfer the entire lawsuit to the Western District of Texas. See detailed discussion of Section 1404(a) infra at 832-834.
. Even if Thompson had been appointed administrator for the FTCA claims in Ferguson and Gyarfas, this would be insufficient to retain jurisdiction over all of Plaintiffs' claims in the consolidated action. In order to avoid piecemeal litigation, these claims should be transferred to the Western District of Texas, where venue is proper for all the Ferguson (as well as the consolidated) claims.
. See more detailed analysis of the traditional Section 1404(a) factors as applied to the case at bar infra at 832-834.
. This Court acknowledges that ordinarily motions to dismiss should be determined by the transferee court. However, the inter-relationship of the venue question with the merits makes this deference on the RICO claims impossible. As to all other claims, this Court expresses no opinion on the legal validity of Plaintiffs' theories.
. United States' and Individual Federal Defendants' List of Persons with Substantial Knowledge of the Events which Gave Rise to the Complaint [Doc. # 124].
. Id.
. Plaintiffs’ Amended List of Persons with Substantial Knowledge of Events giving Rise to Plaintiffs' Claims and/or Damages [Doc. # 126], Plaintiffs argue that, absent discovery, they could not identify every witness located in Houston. This figure while significant is not central to the Court's analysis, given the substantial number of witnesses in the Western District and outside Texas.
. Defendants have identified 198 witnesses in Washington, D.C. and approximately 500 witnesses (in total) outside Texas. Approximately 300 witnesses are located within the state. Plaintiffs have identified 60 witnesses outside Texas and approximately 50 in the Southern and Western districts combined.
. Plaintiffs contend that counsel will have to travel to Waco for numerous hearings regarding discovery disputes and the complex legal issues involved in their constitutional and FTCA claims and for a trial that will last at least eight weeks. Plaintiffs’ Supplemental Response to Defendants' Motions to Dismiss or Transfer for Improper Venue [Doc. # 105], at 2.
. Statistics Division, Administrative Office of the United States Courts, Five Year C-3 Table, at 137, 146. There are eleven district court judges in the Southern District of Texas, Houston Division and one judge in the Western District of Texas, Waco Division.
. Plaintiffs argue that the following rulings evidence bias:
1. The Defendants and other adult Branch Davidians "engaged in a conspiracy to cause the deaths of federal agents."
2. "It was part of the beliefs of the Branch Davidians, expressed and taught by their leader, that they must bring about a violent conflict with federal agents, thereby forcing the agents to use deadly force against them.”
3. David Koresh "preached sermons to motivate his ‘army.’"
4. The Branch Davidians prepared for "the ambush of February 28th...."
5. "... as agents attempted to execute a lawful search warrant, the first shots were fired from inside the front door of the Compound. ...”
6. After the 51 day siege, "by a combination of suicide and murder inflicted by Davidian upon Davidian, all but a handful of the Davidians were killed.”
Plaintiffs' Response, to Exh. 5 (United States v. Branch, et al., No. W-93-CR-046, Sentencing Findings and Opinion at 315-16 (W.D.Tex. June 17, 1994)).
. There are several major cities in the Western District of Texas (e.g., Austin and San Antonio) within 200 miles from Waco with entirely different press and populations. Indeed, Judge Smith already has demonstrated his sensitivity to the jury bias and pretrial publicity issues by transferring the criminal case over which he presided to San Antonio. See supra at 834.
. Judge Smith issued a lengthy Order in Gyarfas I, partially granting Defendants’ Motions to Dismiss. The identical issues are raised in the cases at bar as those addressed by Judge Smith.
. Plaintiffs cite
United States v. Weddell,