UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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DARYL L. BULLOCK, )
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Plaintiff, )
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v. ) Civil Action No. 12-0985 (ABJ)
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WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, et al., )
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Defendants. )
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MEMORANDUM OPINION
Plaintiff Daryl L. Bullock (“Bullock”) brings this action against defendants Washington
Metropolitan Area Transit Authority (“WMATA”) and WMATA police officer M. E. McKinney
(“Officer McKinney”), arising from an alleged physical altercation between Bullock and
McKinney. In the complaint, Bullock asserts claims of false arrest and negligent training and
supervision against WMATA, Compl. [Dkt. # 1] ¶¶ 31–33, 38–40, and of false arrest and use of
excessive force against Officer McKinney, id. ¶¶ 31–37. The false arrest and use of excessive
force claims are asserted under 42 U.S.C. § 1983 (“Section 1983”). Id.
Officer McKinney filed a motion to dismiss the claims against him for lack of personal
jurisdiction and improper venue. Def. M. E. McKinney’s Mot. to Dismiss (“McKinney’s Mot.”)
[Dkt. # 8]. WMATA filed a separate motion to dismiss the claims against it, asserting sovereign
immunity and failure to state a claim upon which relief can be granted. Def. WMATA’s Mot. to
Dismiss (“WMATA’s Mot.”) [Dkt. # 9]. Plaintiff filed an opposition to McKinney’s motion,
Pl.’s Opp. to Def. McKinney’s Mot. (“Pl.’s Opp.”) [Dkt. # 13], but not to WMATA’s motion.
Instead, Bullock has filed a motion for leave to file an amended complaint, which abandons all
claims against WMATA and asserts one new claim against Officer McKinney. Pl.’s Mot. for
Leave to File Am. Coml. (“Mot. for Leave”) [Dkt. # 12]
Because the Court finds that the District of Columbia is an improper venue for the claims
in the proposed amended complaint, but that the District of Maryland is an appropriate venue,
the Court will grant plaintiff’s motion for leave to file an amended complaint, deny WMATA’s
motion to dismiss as conceded and therefore moot, deny McKinney’s motion to dismiss as moot,
and transfer the case to the United States District Court for the District of Maryland.
BACKGROUND
The following facts are alleged in both the original complaint and proposed amended
complaint, except where noted.
In the late afternoon of June 16, 2010, Bullock – a citizen and resident of the District of
Columbia, Compl. ¶ 3; Proposed Am. Compl. [Dkt. # 12-1] ¶ 3 – stopped at Chuck’s Liquor
Store in Maryland after exiting the Metro. Compl. ¶¶ 6–7; Proposed Am. Compl. ¶¶ 6–7. He
cashed his payroll check at the liquor store, and allegedly purchased a non-alcoholic Red Bull
energy drink and a bag of peanuts. Compl. ¶ 8; Proposed Am. Compl. ¶ 8. When Bullock exited
the store, he engaged in conversation with some acquaintances, one of whom asked Bullock to
purchase a Red Bull for him. Compl. ¶ 9; Proposed Am. Compl. ¶ 9. Bullock agreed and then
the two men drank their Red Bulls together as they talked in front of the liquor store. Compl.
¶¶ 9–10; Proposed Am. Compl. ¶¶ 9–10.
The complaints allege that immediately after the men threw their empty cans into a
nearby trash can, two casually-dressed, unidentified men “aggressively approached.” Compl.
¶ 11; Proposed Am. Compl. ¶ 11. One of these individuals was later identified as Officer
McKinney, who is employed by WMATA as a police officer. Compl. ¶¶ 5, 11; Proposed Am.
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Compl. ¶ 4. Bullock believed that the two planned to rob him, so he began to walk away.
Compl. ¶ 13; Proposed Am. Compl. ¶ 13. The complaints allege that at that point, Officer
McKinney grabbed Bullock, threw him against a glass window, grabbed his throat, and forcibly
threw him to the ground. Compl. ¶ 14; Proposed Am. Compl. ¶ 14. According to the
complaints, Officer McKinney proceeded to violently beat Bullock. Compl. ¶ 14; Proposed Am.
Compl. ¶ 14. At some point, Officer McKinney allegedly handcuffed Bullock. Compl. ¶ 18;
Proposed Am. Compl. ¶ 17. The proposed amended complaint adds that Bullock lost
consciousness. Proposed Am. Compl. ¶ 18.
Eventually, an ambulance took Bullock, still handcuffed, to Prince George’s County
Hospital in Maryland. Compl. ¶¶ 17–18; Proposed Am. Compl. ¶ 18. Bullock remained in the
hospital for the next three days, from June 16 to 19, 2012. Compl. ¶ 24; Proposed Am. Compl.
¶ 24. Bullock allegedly remained handcuffed during his first two days in the hospital, and
police officers – including Officer McKinney – remained present in or near his hospital room,
causing him to fear for his safety and wellbeing. Compl. ¶¶ 24–25; Proposed Am. Compl.
¶¶ 24–25.
According to the complaints, sometime after the altercation, Officer McKinney charged
Bullock with “resisting arrest and illegally consuming an alcoholic beverage on public property.”
Compl. ¶ 21; Proposed Am. Compl. ¶ 21. On or about June 18, 2012, Officer McKinney
prepared a probable cause statement for a WMATA police commissioner. Compl. ¶ 22;
Proposed Am. Compl. ¶ 22. The complaints allege that in this statement, Officer McKinney
falsified his reasons for detaining Bullock, and that the charges against Bullock were based on
the allegedly false statement. Compl. ¶¶ 22–23; Proposed Am. Compl. ¶¶ 22–23. All charges
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against Bullock were dismissed at his initial court hearing. Compl. ¶ 26; Proposed Am. Compl.
¶ 26.
Bullock alleges that these events caused him to experience “tramatic [sic] brain injury,
substantial memory loss, epileptic seizures, very bad headaches, and significant embarrassment
and humiliation.” Compl. ¶ 27; Proposed Am. Compl. ¶ 27. The proposed amended complaint
adds that some of these injuries persist. Proposed Am. Compl. ¶ 27.
Bullock filed the original complaint in this action on June 18, 2012. The complaint
alleges that WMATA and Officer McKinney violated Section 1983 by falsely arresting him
(Count I), that Officer McKinney violated Section 1983 by using excessive force against him
(Count II), and that WMATA negligently trained and supervised Officer McKinney (Count III).
Compl. ¶¶ 31–40. McKinney filed a motion to dismiss the claims against him on September 28,
2012, which Bullock opposed on October 22, 2012. WMATA filed a motion to dismiss the
claims against it on October 1, 2012. Bullock has not opposed that motion.
Bullock has now filed a motion for leave to file an amended complaint. The proposed
amended complaint abandons all claims against WMATA. See Mot. for Leave at 1–2 (“Plaintiff
has determined to dismiss WMATA as a party Defendant in the immediate case for reasons
stated in Defendant’s motion to dismiss WMATA.”). 1 It asserts diversity of citizenship as a basis
for jurisdiction. Proposed Am. Compl. ¶ 1. And it alleges that Officer McKinney violated
Section 1983 by falsely arresting Bullock (Count I), using excessive force against him (Count II),
and maliciously prosecuting him (Count III). Id. ¶¶ 31–40.
1 Because the Court will grant plaintiff’s motion for leave to amend, and Bullock has
voluntarily dismissed all claims against WMATA from the proposed amended complaint, the
Court will deny WMATA’s motion to dismiss as conceded and therefore moot. See Lemmons v.
Georgetown Univ. Hosp., 241 F.R.D. 15, 30 (D.D.C. 2007) (explaining that a plaintiff may
successfully abandon specific claims by filing a motion to amend).
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STANDARD OF REVIEW
I. Improper Venue
“In considering a Rule 12(b)(3) motion, the court accepts the plaintiff’s well-pled factual
allegations regarding venue as true, draws all reasonable inferences from those allegations in the
plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor.” Pendleton v.
Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008), quoting Darby v. U.S. Dep’t of Energy, 231 F.
Supp. 2d 274, 276–77 (D.D.C. 2002) (internal quotation marks omitted). The court may
consider material outside of the pleadings. Artis v. Greenspan, 223 F. Supp. 2d 149, 152
(D.D.C. 2002). “Because it is the plaintiff’s obligation to institute the action in a permissible
forum, the plaintiff usually bears the burden of establishing that venue is proper.” Freeman v.
Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003), citing 5A Fed. Prac. & Proc. Civ. 2d § 1352.
Unless there are pertinent factual disputes to resolve, a challenge to venue presents a pure
question of law. Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
II. Leave to Amend Complaint
When a party seeks to amend its pleading after a responsive pleading has been served, the
Court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2);
see Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). When evaluating whether to
grant leave to amend, the Court must consider (1) undue delay; (2) prejudice to the opposing
party; (3) futility of the amendment; (4) bad faith; and (5) whether the plaintiff has previously
amended the complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425 (D.C. Cir. 1996),
quoting Foman v. Davis, 371 U.S. 178, 182 (1962). The Court may deny leave to amend based
on futility “if the proposed claim would not survive a motion to dismiss.” Rumber v. District of
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Columbia, 598 F. Supp. 2d 97, 102 (D.D.C. 2009), citing James Madison Ltd. v. Ludwig, 82 F.3d
1085, 1099 (D.C. Cir. 1996).
ANALYSIS
I. Officer McKinney’s Motion to Dismiss
The parties agree that venue in this case is governed by 28 U.S.C. § 1391(b). “Except as
otherwise provided by law . . . [section 1391(b)] shall govern the venue of all civil actions
brought in district courts of the United States . . . .” 28 U.S.C. § 1391(a); see also Urrutia v.
Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 462 (3d Cir. 1996) (citation omitted) (“[Since]
Section 1983 contains no special venue provision[,] . . . the general venue provisions of 28
U.S.C. § 1391 apply.”).
Although section 1391(b) provides three bases for establishing venue, Bullock only
argues that venue is proper under subsection (b)(2). See Pl.’s Opp. at 7–8. That subsection
states, “A civil action may be brought in . . . a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a substantial part of property that is the
subject of the action is situated[.]” 28 U.S.C. § 1391(b)(2). “With regard to [section
1391(b)(2)], the district in which the plaintiff brings suit need not be ‘the district where the most
substantial portion of the relevant events occurred,’ but the plaintiff must ‘show that a
substantial part of the events or omissions giving rise to the claim occurred in that district.’”
Murdoch v. Rosenberg & Assocs., LLC, 875 F. Supp. 2d 6, 10 (D.D.C. 2012) (internal quotation
marks omitted), quoting Modaressi v. Vedadi, 441 F. Supp. 2d 51, 57 (D.D.C. 2006).
“To determine where a claim arose, a court should engage in a ‘common sense appraisal’
of ‘events having operating significance in the case.’” Mundy v. Weinberger, 554 F. Supp. 811,
818 (D.D.C. 1982), quoting Lamont v. Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978). “Thus,
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venue is proper if the ‘activities that transpired in the forum district were not insubstantial in
relation to the totality of the events . . . .’” Gonzalez v. Holder, 763 F. Supp. 2d 145, 153
(D.D.C. 2011), quoting Lamont, 590 F.2d at 1134 n.62. Such activities, however, must be the
ones out of which the plaintiff’s claims arise; they cannot be tangential, such as the “general
business connections” the defendant may have in the judicial district. See Murdoch 875 F. Supp.
2d at 10.
In this case, the District of Columbia is not a proper venue because Bullock fails to
demonstrate that any of the events giving rise to his claims took place in the District of
Columbia. Bullock admits that the alleged assault occurred in Maryland, but he argues that
venue is nevertheless appropriate under subsection (b)(2) because: (1) “the harm occurred to
Plaintiff in the District of Columbia”; (2) “the underlying evidence and records, we think, are
believed to be in the District of Columbia”; (3) Officer McKinney performed some police work
in the District of Columbia; and (4) inconvenience to the parties does not justify the Court’s
“non-exercise of jurisdiction.” Pl.’s Opp. at 8. These assertions are unavailing.
Bullock does not explain what, if any, harm he suffered in the District of Columbia, and
there is no indication that any of his injuries occurred here. The alleged assault took place in
Maryland, Pl.’s Opp. at 8; see Compl. ¶¶ 7–14, and Bullock was hospitalized in Maryland,
Compl. ¶ 17. The impact of the alleged attack – the brain injury, memory loss, epileptic seizures,
headaches, embarrassment and humiliation, id. ¶ 27 – occurred as an immediate result of the
alleged assault, in Maryland. Even if the effects of Bullock’s injuries have continued since he
left the hospital, any pain or suffering experienced at times when he enters the district are not a
substantial part of the events that give rise to the claims in his complaint.
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Similarly, the “underlying evidence and records” and Officer McKinney’s police work in
the District of Columbia do not establish venue in this Court. Bullock argues that the underlying
evidence includes WMATA’s policies and procedures, Officer McKinney’s training history, the
level of supervised directives he received, and his history of disciplinary action. Pl.’s Opp. at 7.
However, “[d]efendants’ general business connections to the District of Columbia do not suffice
to show that this district is where a substantial part of the events or omissions giving rise to the
claim occurred.” Murdoch, 875 F. Supp. 2d at 10. 2 Here, Officer McKinney’s ties to the
District of Columbia through his employment records and unrelated police work do not
constitute “a substantial part” of the alleged assault that gives rise to Bullock’s claims.
Finally, Bullock correctly notes that inconvenience does not justify the “non-exercise of
jurisdiction,” but he fails to recognize that venue is a consideration separate from jurisdiction but
also necessary. See Joyner v. Reno, 466 F. Supp. 2d 31, 42 n.10 (D.D.C. 2006) (“‘[A] transfer
under § 1406(a) is not based on the inconvenience of the transferor forum but on the impropriety
of that forum.’”), quoting Manley v. Engram, 755 F.2d 1463, 1476 (11th Cir. 1985).
Under subsection (b)(2), Bullock has not met his burden of alleging that “a substantial
part of the events or omissions giving rise to the claim” took place in the District of Columbia.
The District of Columbia is thus not a proper venue for Bullock’s action under section 1391(b),
so the Court need not determine whether it has personal jurisdiction.
2 While these connections to the District of Columbia may be relevant to the issue of
personal jurisdiction, they are inapplicable to the question of venue. “Analysis of the relevant
facts under § 1391(b)(2) conforms to the general rule that ‘questions of personal jurisdiction and
venue are distinct.’” Murdoch, 875 F. Supp. 2d at 10, quoting Day v. Cornèr Bank (Overseas)
Ltd., 789 F. Supp. 2d 150, 160 (D.D.C. 2011).
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II. Court’s Discretion to Transfer the Case
When a plaintiff files an action in an improper venue, 28 U.S.C. § 1406(a) directs courts
to dismiss the case or, alternatively, transfer it to a proper venue if transfer would “be in the
interest of justice.” “Although the decision to transfer or dismiss is committed to the sound
discretion of the district court, the interest of justice generally requires transferring a case to the
appropriate judicial district in lieu of dismissal.” Ellis-Smith v. Sec’y of the Army, 793 F. Supp.
2d 173, 177 (D.D.C. 2011), citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962).
Transfer based on improper venue is preferred over dismissal because “procedural obstacles
‘impede an expeditious and orderly adjudication . . . on the merits.’” Sinclair v. Kleindienst, 711
F.2d 291, 293–94 (D.C. Cir. 1983), quoting Goldlawr, 369 U.S. at 466–67. “Refusal to transfer
spells the end to the action, while transfer would not prejudice the defendants’ position on the
merits.” Sinclair, 711 F.2d at 293.
Here, the interest of justice requires the Court to transfer this case to the District of
Maryland. Maryland is an appropriate venue for this action under 28 U.S.C. § 1391(b)(2)
because all of the events giving rise to Bullock’s claims occurred there. It is also a proper venue
under section 1391(b)(1), which provides that if all defendants reside in the same state, venue is
appropriate in “a judicial district in which any defendant resides,” because Officer McKinney,
the only defendant remaining in this case, resides in Maryland. See Def. McKinney’s Mem. in
Support of Mot. to Dismiss [Dkt. # 7] at 1–2; Mot. for Leave at 2.
III. Motion for Leave to File Amended Complaint
The proposed amended complaint in this action adds some limited new factual
allegations, but the core allegations about where the events that give rise to Bullock’s claims
occurred are the same as in the original complaint – Bullock was attacked and hospitalized in
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Maryland. See Proposed Am. Compl. ¶¶ 6–18. The claims in the proposed amended complaint
arise entirely from those two events. Accordingly, the Court will grant Bullock’s motion for
leave to amend, but since the deficiency in venue is not cured by the amendment, the Court will
still exercise its discretion to transfer the entire action to the District of Maryland.
CONCLUSION
For the reasons stated above, the Court will grant Bullock’s motion to file an amended
complaint, deny WMATA’s motion to dismiss as conceded and therefore moot, deny
McKinney’s motion to dismiss as moot, and transfer this action to the United States District
Court for the District of Maryland.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: May 6, 2013
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